Schwartz v. Jefferson, No. B--5011
| Court | Supreme Court of Texas |
| Writing for the Court | DANIEL |
| Citation | 520 S.W.2d 881 |
| Docket Number | No. B--5011 |
| Decision Date | 19 March 1975 |
| Parties | A. R. SCHWARTZ et al., Relators, v. Andrew L. JEFFERSON, Jr., Judge, et al., Respondents. |
Page 881
v.
Andrew L. JEFFERSON, Jr., Judge, et al., Respondents.
Simpson, Morgan & Burwell, Texas City, A. R. Schwartz, Galveston, for relators.
Vinson, Elkins, Searls, Connally & Smith, John B. Holstead, Houston, for respondents.
DANIEL, Justice.
This is an original mandamus proceeding in which a member of the Texas Legislature, Senator A. R. Schwartz, seeks for himself and his client a writ compelling District Judge Andrew L. Jefferson, Jr., to grant a legislative continuance of certain post-judgment motions filed in December of 1974 and January of 1975 relating to the enforcement of a judgment entered by Judge Jefferson on December 28, 1973, in the Harris County Court of Domestic Relations Number Two. On January 24, 1974, Judge Jefferson having become Judge of the 208th Criminal District Court, the case was transferred to that court.
The judgment was a divorce decree in favor of relator, Mrs. Barbara Franzheim (now Mrs. Daniel Dror), against respondent, Kenneth Franzheim, terminating their marriage, awarding her custody of and child support for their three children, and adjudicating their rights to title and possession of various properties. No appeal was perfected from this judgment.
Among other things, Mrs. Franzheim was awarded $300,000, with the specific provision that such sum 'shall be used by (her) for the construction or purchase of a new residence' for herself and children within the period of one year from the date of the judgment. Mr. Franzheim was awarded the residence previously occupied by the parties, known as the Greentree residence, subject to the right of Mrs. Franzheim 'to continue to occupy the Greentree residence for a period of one year from the date of this judgment or until she moves into a new residence whichever occurs first.' These provisions of the judgment, and Mrs. Franzheim's failure to vacate the Greentree residence on or before December 28, 1974, give rise to the present post-judgment motions and this mandamus proceeding.
Senator Schwartz did not represent Mrs. Franzheim at the trial or at the entry of the judgment of December 28, 1973. Thereafter, on December 19, 1974, Senator Schwartz filed notice of substitution as one of her attorneys. On the following day, he and other counsel for her filed a Motion to Stay prior orders of the court relating to use of the $300,000 and possession
Page 884
of the Greentree residence. On December 27, 1974, Kenneth Franzheim filed a motion that Barbara Franzheim Dror and her husband, Daniel Dror, be held in contempt of the prior orders of the court, and on January 1, 1975, Mr. Franzheim filed an Application for Enforcement of Decree of Divorce Dated December 28, 1973.Judge Jefferson set a hearing on the Motion to Stay and the Motion for Contempt on January 2, 1975, and Senator Schwartz filed a Motion for Continuance of the hearing until 30 days after the adjournment of the Sixty-Fourth Session of the Legislature, based upon the provisions of Article 2168a. At the hearing on January 2, 1975, Judge Jefferson overruled the Motion for Continuance and set all three of the post-judgment motions for hearing on January 17, 1975. Thereupon, this mandamus proceeding was instituted and Judge Jefferson was notified to delay further hearings pending this Court's decision.
The questions are whether the judgment of December 28, 1973, is final, and if so, whether the mandatory provisions of Article 2168a, 1 known as the legislative continuance act, are applicable to motions to stay and motions to enforce a final judgment when applied for by a legislator attorney who was employed after the suit had proceeded to trial and final judgment. The same questions apply to the pending motion for contempt proceedings. Mr. Franzheim alleges numerous grounds of unconstitutionality if the Article is held to encompass hearings on such post-judgment motions in a manner that would delay or deprive him of rights which have been vested by a final judgment.
Article 2168a provides:
'In all suits, either civil or criminal, or in matters of probate, Pending in any court of this State, and in all matters ancillary to Such suits which require action by or the attendance of an attorney, including appeals but excluding temporary restraining orders, at any time within thirty (30) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, or when the Legislature sits as a Constitutional Convention, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same. If the member of the Legislature is an attorney for a party to such cause, his affidavit shall contain a declaration that it is his intention to participate actively in the preparation and/or presentation of the case. Where a party to any cause or an attorney for any party to such cause is a Member of the Legislature, his affidavit need not be corroborated. On the filing of such affidavit, the court shall continue the cause until thirty (30) days after the adjournment of the Legislature and such affidavit shall be proof of the necessity for such continuance, and such continuance shall be deemed one of right and shall not be charged against the party receiving such continuance upon any subsequent application for continuance. It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.
'Notwithstanding the foregoing, the right to such continuance, where such continuance is based upon an attorney in such cause being a member of the Legislature, shall be discretionary with the Court in the following situations and under
Page 885
the following circumstances, and none other, to wit:'(1) Where such attorney was employed within 10 days of the date such suit is set for trial.' 2
We hold that the suit between Mrs. and Mrs. Franzheim had been terminated by a trial and final judgment prior to the legislator's employment; that Mrs. Franzheim's post-judgment Motion to Stay and Mr. Franzheim's Motion to Enforce relate solely to the enforcement of the judgment and are not ancillary to any pending suit and are not separate pending suits within the scope of Article 2168a; and that the petition for mandamus should be denied insofar as it relates to those two motions. As to the contempt proceeding, we hold it is in the nature of a separate suit filed after the employment of the legislator attorney; that the hearing thereon should have been continued in accordance with Article 2168a; and that relators are entitled to a writ of mandamus to compel a continuance of he hearing thereon.
Respondent Franzheim contends that the Motion for Continuance is fatally defective because it does not comply with Rule 254. This contention is overruled. The motion complies with the form prescribed by the statute, which controls over a prior inconsistent Rule, and which specifically repealed Rules inconsistent therewith. 3
Our holding that Article 2168a is applicable to the constructive contempt proceeding is based upon the fact that it has all of the elements of a separate cause or suit. Even though related to the enforcement of the judgment and subsequent implementing orders, the contempt proceeding initiated by Mr. Franzheim on December 27, 1974, seeks additional relief in the form of penalties and punishment. Such proceedings have been held to be criminal in nature, requiring a show cause order or verified complaint, notice, and hearing in open court. Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154 (1953); Ex parte Scott,...
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McGinnes Indus. Maint. Corp. v. Phx. Ins. Co., No. 14–0465
...defined "suit" to mean a proceeding in a court or tribunal.9 This Court has repeatedly done the same. See Schwartz v. Jefferson, 520 S.W.2d 881, 886 (Tex.1975) (defining "suit" as "any proceeding 477 S.W.3d 798in a court of justice by which an individual pursues that remedy in a court of ju......
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Schuler v. State, No. 87-135
...Driscoll v. McAlister Bros., 294 Pa. 169, 144 A. 89 (1928) (workers' compensation); In Re Egan, 123 N.W. 478; Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975) (legislative continuance); Pan American Bank of Brownsville v. Nowland, 650 S.W.2d 879 (Tex.App.1983) (amendatory statute for attorn......
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In re John, No. 13-03-696-CV (TX 6/16/2004), No. 13-03-696-CV.
...tend to become endless." Id. A bill of review, by its nature, acknowledges the existence of a final judgment. Schwartz v. Jefferson, 520 S.W.2d 881, 889 (Tex. 1975) (orig. proceeding). The filing of a bill of review alone will not affect the finality of the judgment. Id. To have the judgmen......
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Collier v. Poe, No. 69739
...and the denial of the legislative continuance was upheld in DeVries v. Taylor, 505 S.W.2d 780 (Tex.1973). And in Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975), the Court observed, in granting a conditional mandamus, that the 1973 mandatory amendment was still alive and well. 12 In Glover......
-
McGinnes Indus. Maint. Corp. v. Phx. Ins. Co., No. 14–0465
...defined "suit" to mean a proceeding in a court or tribunal.9 This Court has repeatedly done the same. See Schwartz v. Jefferson, 520 S.W.2d 881, 886 (Tex.1975) (defining "suit" as "any proceeding 477 S.W.3d 798in a court of justice by which an individual pursues that remedy in a court of ju......
-
Schuler v. State, No. 87-135
...Driscoll v. McAlister Bros., 294 Pa. 169, 144 A. 89 (1928) (workers' compensation); In Re Egan, 123 N.W. 478; Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975) (legislative continuance); Pan American Bank of Brownsville v. Nowland, 650 S.W.2d 879 (Tex.App.1983) (amendatory statute for attorn......
-
In re John, No. 13-03-696-CV (TX 6/16/2004), No. 13-03-696-CV.
...tend to become endless." Id. A bill of review, by its nature, acknowledges the existence of a final judgment. Schwartz v. Jefferson, 520 S.W.2d 881, 889 (Tex. 1975) (orig. proceeding). The filing of a bill of review alone will not affect the finality of the judgment. Id. To have the judgmen......
-
Collier v. Poe, No. 69739
...and the denial of the legislative continuance was upheld in DeVries v. Taylor, 505 S.W.2d 780 (Tex.1973). And in Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975), the Court observed, in granting a conditional mandamus, that the 1973 mandatory amendment was still alive and well. 12 In Glover......