Permian Corp. v. Pickett
| Decision Date | 12 August 1981 |
| Docket Number | No. 7116,7116 |
| Citation | 620 S.W.2d 878 |
| Parties | The PERMIAN CORPORATION, Appellant, v. Perry D. PICKETT and Walter R. Davis, Appellees. |
| Court | Texas Court of Appeals |
This case presents the question of whether a retired district judge, who has consented to be subject to assignment, may be assigned by a presiding judge of an administrative judicial district to hear a case in a particular district court where the regular judge of such court is not disabled or disqualified, and is present and trying other cases.
For more than twenty-five years, the Honorable Perry D. Pickett was the District Judge of the 142nd Judicial District Court in Midland County. Having decided to retire, he was not a candidate for re-election in 1980, and his term of office expired on December 31, 1980. The Honorable Pat M. Baskin was duly elected to succeed Judge Pickett, and he became the Judge of the 142nd Judicial District Court on January 1, 1981.
In January, 1977, Governor Dolph Briscoe appointed Perry D. Pickett to the position of Presiding Judge of the 7th Administrative Judicial District of Texas. On January 9, 1981, an order was signed by both Perry D. Pickett as Presiding Judge of the 7th Administrative Judicial District and Pat M. Baskin, as Presiding Judge of the 142nd Judicial District Court in which Perry D Pickett was assigned to hear Cause No. B-29,021 styled W. R. Davis, et al., v. The Permian Corporation, in the 142nd Judicial District Court. That order recites:
Prior to his recent retirement Judge Pickett conducted numerous hearings, decided many points of law and otherwise familiarized himself in general and in detail with Case No. B-29,021 now pending in the 142nd Judicial District Court styled W. R. Davis, for himself and on behalf of the Class comprised of all sellers of crude oil to The Permian Corporation v(s). The Permian Corporation. It is apparent that that action is a complex case which will require a disproportionate amount of continuing study and supervision by the judge presiding over it.
Both of the undersigned judges having examined the files in the case are of the opinion and find that it would be in the interest of justice for Judge Pickett to assist Judge Baskin by continuing as the judge presiding over that action.
There is no dispute concerning Judge Pickett's consent to be subject to assignment, and his continuing to serve as Presiding Judge of the 7th Administrative Judicial District on January 9, 1981, when he assigned himself to the case against The Permian Corporation.
Permian decided to contest this assignment, and filed a suit for declaratory judgment and injunctive relief, asserting that the order was void. An order was entered setting Permian's application for temporary injunction, and the Honorable Ken Spencer, Judge of the 109th Judicial District Court presided at the hearing. He concluded that Judge Pickett was qualified to serve and denied Permian "the injunctive relief sought," which all parties seemed to agree includes both the temporary and permanent injunction.
Article 5, Section 11, of the Texas Constitution contains provisions for district judges to hold court for each other. The second paragraph of that section provides, in part:
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.
In Floyd v. State, 488 S.W.2d 830 (Tex.Cr.App.1972), the Court noted that the expression "whenever they deem it expedient" confers on district judges broad discretionary powers to exchange benches, or hold court for each other, which is reviewable only if an abuse of discretion has occurred.
Article 200a, Section 5, Tex.Rev.Civ.Stat.Ann., provides:
Sec. 5. Judges may be assigned in the manner herein provided for the holding of District Court when the regular Judge thereof is absent or is from any cause disabled or disqualified from presiding, and in instances where the regular District Judge is present or himself trying cases where authorized or permitted by the Constitution and laws of the State; and Judges may also be assigned in the manner herein provided for the holding of a District Court, when by reason of the death, resignation, or from any cause whatsoever, the office of District Judge of the District is or has become vacant.
This statute in effect provides for the assignment of another judge (1) when the regular judge is absent, disabled or disqualified; (2) when the regular judge is present and another judge is authorized; and (3) when the office of district judge has become vacant. In this case, we are concerned exclusively with the second provision.
The assignment order reflects that the presiding judge and the regular judge have concluded that it would be expedient for Perry D. Pickett to hear this case, and such determination comes...
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