Pierson v. State, 22695.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 177 S.W.2d 975
• Docket Number: No. 22695.,22695.
• Parties: PIERSON v. STATE.
• Decision Date: 16 February 1944

177 S.W.2d 975

PIERSON v. STATE.

No. 22695.

Court of Criminal Appeals of Texas.

February 16, 1944.

Commissioners' Decision.

Appeal from Criminal District Court, Dallas County; Grover Adams, Judge.

Robert M. Pierson was convicted of murder, and he appeals.

Reversed and remanded.

Noah Roark, Doss Hardin, and Baskett & Parks, all of Dallas, for appellant.

Dean Gauldin, Crim. Dist. Atty., of Dallas, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

For the murder of Thomas Joseph Vittrup appellant has been condemned to suffer the penalty of death. This is a second appeal. The former will be found reported in Tex.Cr.App., 168 S.W.2d 256.

The pivotal question is whether appellant has been deprived, without fault or negligence on his part, of a statement of facts and bills of exception. If so, a reversal of the conviction is mandatory. 4 Tex.Jur. p. 450, Sec. 312, and authorities there cited.

Appellant contends that he was deprived of a statement of facts and bills of exception because (a) there was no judge authorized to approve same, and (b) the judge who did approve same was not legally authorized to do so.

This case was tried in the Criminal District Court of Dallas County, at the April Term, 1943, before the Honorable Grover Adams, the duly elected, qualified and acting Judge of said Court, presiding. Said term of court, by operation of law, adjourned on July 3rd, 1943.

On the 1st day of July, 1943, Judge Adams overruled Appellant's Motion for New Trial, to which he excepted and gave notice of appeal to this court. Sixty days from and after said date were allowed within which to file statement of facts and bills of exception. Under the provisions of Art. 760, C.C.P., appellant was entitled to ninety days from and after said date within which to file his statement of facts.

On the 25th day of August, 1943, and within the periods of time mentioned, and, before the statement of facts and bills of exception had been approved, Judge Adams died.

The vacancy thus created in the Office of Judge of the Criminal District Court of Dallas County has not been filled by election or appointment of a successor. There is not now, and has not been since the death of Judge Adams, a judge of said court.

After the death of Judge Adams, under and by virtue of the power and authority conferred by what is known as the Administrative Judicial Districts Act, and appearing as Art. 200-a, Vernon's Annotated Civil Statutes, the Presiding Judge of the First Administrative District—being the district in which Dallas County is situated—assigned judges of other district courts in said district "to the Criminal District Court of Dallas County, Texas, at Dallas, Texas, beginning on the 26th day of August, 1943, for the trial of any cases, criminal or civil, and the hearing of any motions or any orders necessary, and handling all matters of said court including the signing all papers that may come before him in said Criminal District Court, so long as he deems it necessary for such court". The judge thus assigned to the Criminal District Court of Dallas County approved the bills of exception appearing in this case. Another judge similarly assigned approved the statement of facts.

Under the facts stated, appellant contends that he has been, without fault on his part, deprived of a statement of facts and bills of exception, because there is not now, and has not been since the death of Judge Adams, a successor judge authorized to approve said documents.

Appellant supports this contention upon the proposition that: (a) Upon the death of Judge Adams, the Office of Judge of the Criminal District Court of Dallas County became vacant. (b) No successor to Judge Adams has been appointed. (c) Only a successor to Judge Adams has authority to approve the statement of facts and bills of exception.

Appellant correctly asserts that the power to appoint a successor to a deceased district judge lies exclusively with the Governor of this State. The Constitution expressly so provides. Art. V, Sec. 28, Vernon's Ann. St. It is also true that the Governor has not seen proper to appoint a successor to Judge Adams, and the Office of Judge of the Criminal District Court of Dallas County is now vacant.

The question of the right or power of the Legislature to provide for the filling of the vacancy caused by the death of Judge Adams is not before us, because the Legislature has not attempted to do so, and the judges who approved the statement of facts and bills of exception did not do so as the Judge of the Criminal District Court of Dallas County, but as a judge of another district court assigned to preside over the Criminal District Court of Dallas County. In doing so, said assigned judges did not relinquish the offices they held, nor did they attempt to qualify as the successor of Judge Adams. They did not purport to act as judge de jure or de facto of the Criminal District Court of Dallas County.

The State takes issue with appellant only upon the proposition that the judge who approved the statement of facts and bills of exception was not authorized by law to do so. It asserts that such authority has been lawfully conferred by the Legislature in the passage of what is hereinafter referred to as the Amendment of 1943, amending Section 5 of the Administrative Judicial Districts Act, and being Chapter 22, Acts of the Regular Session, 48th Legislature, in 1943, effective February 17, 1943, and appearing as Sec. 5, Art. 200a, Vernon's Annotated Civil Statutes, and which reads as follows:

"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. As amended Acts 1943, 48th Leg., p. 25, ch. 22, § 1."

The validity of said. Act is challenged, especially in so far as it authorizes a judge of another district court to serve as the judge of a district court which has no regularly constituted judge, the office of judge of which court is vacant.

The claimed invalidity of the Act is that it is violative of Sec. 28 of Art. V of the Constitution, which places exclusively in the hands of the Governor the power to appoint a successor to a deceased district judge, in that the Act has the effect of allowing the Legislature to fill a vacancy in the office of district judge, caused by death of the incumbent.

In determining the validity of the Amendment of 1943 as against the attack made, it is well to keep in mind two fundamental rules of construction, which are: (a) The Constitution is to be construed as a whole with a view of ascertaining the intent of its framers. Cooley's Const. Limitations, 8th Ed., Vol. I, p. 124; Ex parte Woods, 52 Tex.Cr.R. 575, 108 S.W. 1171, 16 L.R.A.,N.S., 450, 124 Am.St.Rep. 1107. (b) The Legislature has the power to pass any and all such laws as to it may seem proper, save and except where limited or prohibited from so doing by the Constitution of this State or by the Constitution of the United States. 39 Tex.Jur. p. 59, Sec. 31.

Sections 1, 7, 8, 11, and 14 of Article V of the State Constitution are deemed pertinent. We refrain from quoting them, but therein the following specific provisions appear:

1. District courts were expressly recognized as a part of the judicial system of this State. Sec. 1, Art. V 2. The Legislature was enjoined to divide the State into as many different districts as to it appeared proper. Sec. 7, Art. V.

3. Those district courts existing at the time of the adoption of the Constitution were expressly recognized and were to so remain until changed by the Legislature. Sec. 14, Art. V.

4. The jurisdiction of district courts was fixed. Sec. 8, Art. V.

5. For each district court a judge was to be elected possessing certain qualifications. Sec. 7, Art. V.

6. The Legislature was enjoined to provide by law for the holding of district courts when the judge thereof was absent, disabled, or disqualified. Sec. 7, Art. V; and to provide for an exchange of districts by the judges, and for the holding of courts for each other. Sec. 11, Art. V.

It thus appears that: (a) District courts, that is, the courts themselves, the jurisdiction thereof, and the qualifications of the judges to preside over the courts, were defined and fixed by the Constitution; and (b) to the Legislature, and that body alone, was given the exclusive authority to create such courts, to fix the territorial jurisdictions thereof, and to determine the number of such courts authorized to exist in this state. The power to create district courts, of necessity, carries with it the equal power to destroy and this power of destruction is as exclusive in the Legislature as the power to create. Such power to prevent the destruction of district courts is necessary in order that the Legislature might freely and fully exercise its sovereignty over the existence of any and all district courts authorized to exist in this State.

In the exercise of the authority thus conferred by the Constitution, the Legislature has, from time to time, increased, diminished, created, and destroyed district courts. In 1893, the Legislature, recognizing that a need existed for a Criminal District Court in Dallas County, created that court, Arts. 52—1 to 52—7, C.C.P., and defined its jurisdiction. The Legislature has not subsequently destroyed that court. It is in existence today.

The Legislature has, from time to time, made provision for the orderly and complete functioning of a court, in the absence of the regular...