Porter v. State

• Decision Date: 12 April 1905
• Citation: 86 S.W. 767
• Parties: PORTER v. STATE.
• Court: Texas Court of Criminal Appeals

86 S.W. 767

PORTER v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1905.

Appeal from Milam County Court; U. S. Hearrell, Judge.

Ben Porter was convicted of a misdemeanor, and appeals. Reversed.

Freeman & Morrison, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of a misdemeanor, and prosecutes this appeal.

Appellant contends that this conviction cannot be maintained, because, under the Constitution, it was not competent for the Legislature to have authorized the election of a special judge to hold said county court. Article 1132b, Sayles' Ann. Civ. St. 1897, provides that, if at the time appointed to hold a county court the judge should not appear, members of the bar can elect a special judge to hold the term of court. The contention is that there is nothing in the Constitution which authorizes this procedure, and that the only authority in the Constitution authorizing any one other than the regular county judge to sit is to be found in section 16 of article 5 of the Constitution, the latter portion of which provides, "When the judge of the county court is disqualified in any case pending in the county court, the parties interested 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." It is further insisted that this being the sole provision authorizing some one else to sit as a judge and try the cases in the county court, and that with reference to district courts it being expressly provided, where a judge fails from any cause to attend at the term, the bar can select a special judge, this constitutional provision re-enforces the idea that it was not intended to confer authority on the bar, where the judge failed to attend a meeting of the county court, to elect a special judge. We do not believe this contention is sound. The fact that the Constitution provides for the selection of a special judge in the district court, in the absence of some prohibitive provision with reference to county courts, would be no negation of authority. That is, before it could be held that the Legislature did not have the power to provide for the election of a special judge, there must be found something in the Constitution with reference to county courts expressly or by strong implication denying such authority. Ex parte Wilbarger, 41 Tex. Cr. R. 514, 55 S. W. 968; Lytle v. Halff, 75 Tex. 128, 12 S. W. 610. As stated, the only clause of our Constitution authorizing the selection of a county judge is where the county judge is disqualified. It has no reference whatever to holding a term of the court where the county judge, from any cause, shall fail to attend. This contingency not being provided for by the Constitution, we hold it was competent for the Legislature to authorize the selection of a special judge by the members of the bar. It is contended in this connection that the county judge is required to give bond, and no provision is found in the act with reference to a special judge requiring him to give bond. We hold that, as to his qualifications, reference might be had to the general act on the subject. At any rate, the failure to prescribe a bond would not invalidate his election.

It is further insisted that the election here of a special county judge was on the first day of the term, and that the act in question provides that, "if at the time appointed to hold court, the judge shall not appear," etc.; that "the time" is tantamount to "the day," and the county judge would have all of the first day to put in an appearance, and consequently the election of the county judge on the first day was without authority of law. To support this instance, we are referred to Scott v. State (Tex. Cr. App.) 68 S. W. 178. In that case we held that the district judge had the entire first day to appear, and that the election on the second day would be authorized, but we pretermitted the question as to whether an election on the first day would be void. We do...