Oates v. State

• Decision Date: 20 March 1909
• Citation: 121 S.W. 370
• Parties: OATES v. STATE.
• Court: Texas Court of Criminal Appeals

121 S.W. 370

OATES v. STATE.

Court of Criminal Appeals of Texas.

March 20, 1909.

On Rehearing, June 23, 1909.

Appeal from Criminal District Court, Dallas County; Walter S. Lemmon, Special Judge.

Burrell Oates was convicted of murder, and he appeals. Reversed on rehearing.

A. S. Baskett, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

The appellant was convicted in the district court of Dallas county of the crime of murder in the first degree, and the penalty of death assessed against him by the jury. This is the fourth appeal of his case. The opinions of this court in the other appeals will be found in the following volumes: 48 Tex. Cr. R. 131, 86 S. W. 769; 50 Tex. Cr. R. 39, 95 S. W. 105; 51 Tex. Cr. R. 449, 103 S. W. 859—where a full history of the case is given.

When the case came on to be tried last, Hon. W. W. Nelms was the judge of the criminal district court of Dallas county. He was disqualified to try the case, in that, as assistant county attorney of Dallas county, he had been engaged in the prosecution of appellant in a former trial, or former trials of this case. Thereupon he certified his disqualification to the Governor, who, being so advised, appointed Hon. W. S. Lemmon, a member of the Dallas bar, who was a private citizen, a practicing lawyer, but not a judge of any district court in this state, to try this cause. Soon thereafter Mr. Lemmon took the usual and required oath of office and proceeded to set the case for trial, ordered a special venire, over the drawing of which he presided under the provisions of the act of the Thirtieth Legislature, applying to counties having a city or cities of more than 20,000 population. Upon the call of the case for trial, Mr. Lemmon, assuming to act as judge of the said criminal district court of Dallas county, the appellant, through his counsel, presented in limine his objection and exception to proceeding to trial in said case before the said Lemmon, as judge, and in effect urged a plea to the jurisdiction, right, or authority of the said Lemmon to try said cause: First, calling in question the right and power of the Governor to appoint a practicing attorney to act as special judge in his cause. This motion was overruled, and all the facts necessary to a decision of the validity of Lemmon's appointment and his right to try the case, as judge, are preserved in and evidenced by the record. In line with this same contention, appellant moved to quash the venire theretofore summoned, because, under the Constitution and laws of this state, Mr. Lemmon was not authorized to preside over the drawing of same, as well as for other reasons not necessary here to notice. This motion was also overruled, appellant compelled to submit to the trial of his case in said court before Mr. Lemmon as judge, and to select a jury from the venire drawn under his direction. Appellant excepted to this action of the court and evidences the facts as to both motions or pleas by proper bill of exceptions. Indeed, there is no dispute about the facts, and we are confronted at the threshold of the case with the question as to whether, under the law as it existed at the time of the trial, the Governor of this state had the constitutional and legal right to appoint a practicing lawyer, not a district judge, as special judge to try a pending case where the presiding judge of such court is disqualified. On this question, counsel for appellant submit the following proposition: "The Governor of the state of Texas has no authority in law to appoint a practicing lawyer as special district judge to try a cause where the presiding judge is disqualified, and such attempted appointment confers no power, authority, or jurisdiction on such practicing lawyer to hear and determine any of the issues in said cause, or to preside over the trial thereof. The only power the Governor has in such cases is to direct the judge of some adjoining district to exchange benches with the judge of this court for the purposes of trying this cause."

Section 11 of article 5 of our state Constitution, in so far as it relates to district judges, is as follows: "When a judge of the district court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law. And the district judges may exchange districts, or hold courts for each other when they may deem it expedient and shall do so when required by law." It will be seen from this provision of the Constitution that parties have a constitutional right to agree upon a special judge without any legislation in reference to the matter. This was decided in the case of Parker County v. Jackson, 5 Tex. Civ. App. 37, 23 S. W. 924.

Article 1069 of our Revised Statutes of 1895 is as follows: "Whenever any case or cases are called or pending in which the district judge or the special judge chosen is disqualified from trying the same, no change of venue shall be made necessary thereby; but the parties or their counsel shall have the right to select and agree upon an attorney of the court for the trial thereof, and if the parties or their attorneys shall fail to select or agree upon an attorney for the trial of such case, at or before the time it is called for trial, or if the trial of the case is pending, and the district judge should become unable to act or is absent, and a special judge is selected who is disqualified to proceed with the trial, and the parties fail to select a special judge at once who is qualified, it shall be the duty of the district judge or special judge presiding to certify the fact immediately to the Governor by mail, telegram or otherwise, whereupon the Governor shall appoint a special judge not so disqualified to try the same. The evidence of such appointment may be transmitted by telegram or otherwise. The special judge so appointed shall qualify and proceed to the trial or disposition of such case immediately, if the trial is pending, otherwise, when called or reached, as in other cases." Article 1070 of the same chapter provides: "Whenever a special judge is agreed upon by the parties or is appointed by the Governor for the trial of any particular cause, as above provided, the clerk shall enter in the minutes of the court as a part of the proceedings in such cause a record showing: (1) That the judge of the court was disqualified to try the cause; and (2) that such special judge (naming him) was, by consent, agreed upon by the parties to try the cause; or (3) that the parties having failed to agree upon a proper person to try the cause, and the judge of the court having certified that fact to the Governor, he had appointed such special judge (naming him) to try the cause; and (4) that the oath prescribed by law had been duly administered to such special judge." Under the above and foregoing articles, the parties having failed to agree upon a special judge, it was the duty and the right of the Governor of this state to appoint Hon. Walter S. Lemmon special judge of said court to try said case.

Appellant insists that the act of the Legislature, approved June 19, 1897 (Acts 25th Leg. Sp. Sess. p. 39, c. 12), in terms repealed articles 1069 and 1070, above quoted, and that under the law as it now exists such power of appointment no longer exists. The law in question is, as follows:

"Section 1. Be it enacted by the Legislature of the state of Texas: That articles 1069 and 1070 of the Revised Civil Statutes of the state of Texas be so amended as to hereafter read as follows:

"Art. 1069. Whenever any case or cases, civil or criminal, are pending in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby; but the judge presiding shall immediately certify that fact to the Governor, whereupon the Governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and the Governor shall also notify both of said judges of such order, and it shall be the duty of said judges to exchange districts for the purpose of disposing of such case or cases, and in case of sickness or other reasons rendering it impossible to exchange, then the parties or their counsel shall have the right to select or agree upon an attorney of the court for the trial thereof.

"Art. 1070. Whenever a special judge is agreed upon by the parties for the trial of any particular cause, as above provided, the clerk shall enter in the minutes of the court, as a part of the proceedings in such cause, a record showing: (1) That the judge of the court was disqualified to try the cause; and (2) that such special judge (naming him) was by consent agreed upon by the parties to try the cause; and (3) that the oath prescribed by law had been duly administered to such special judge.

"Sec. 2. That all laws and parts of laws in conflict with this act be and the same are hereby repealed.

"Sec. 3. The fact that under the present law there is a heavy annual expense entailed upon the state for the payment of special judges which could be avoided by the regular district judges exchanging districts, creates an emergency and an imperative public necessity requiring that the constitutional rule requiring all bills to be read on three several days be suspended, and that this act take effect and be in force from and after its passage, and it is so enacted."

There can be no cavil over the question, as appellant insists that, if the last cited act is constitutional, it repeals the pre-existing law and deprives the Governor of this state of the power to appoint a district judge in the manner and form as was done above; but we hold said act unconstitutional in that, by the terms and conditions of said act of 1897, the parties are deprived of the right to agree upon a...