State ex rel. Dishman v. Gary

Citation359 S.W.2d 456,163 Tex. 565
Decision Date02 July 1962
Docket NumberNo. A-9088,A-9088
PartiesThe STATE of Texas ex rel. George DISHMAN et al., Relators, v. Honorable Gordon D. GARY, District Judge, et al., Respondents.
CourtSupreme Court of Texas

Will Wilson, Atty. Gen., Austin, W. C. Lindsey, Criminal Dist. Atty., Jefferson County, W. G. Walley, Jr., Beaumont, Tex., for relators.

Quentin Keith, Beaumont, for respondent Gary.

Gilbert T. Adams, Beaumont, for respondent Meyer.

NORVELL, Justice.

This cause grows out of a judicial stalemate existing in Jefferson County, Texas which was brought about by conflicting orders issued by the judges presiding over the courts of the 60th and the 136th judicial districts. A legal question as to the jurisdiction of courts is involved and there is nothing in the record before us which reflects upon the integrity or good faith of the judges or the district attorneys involved.

The specific relief requested by the State of Texas is a writ of mandamus requiring the Honorable Gordon D. Gary, judge of the 60th District Court, to expunge from the record a certain order, said to be void, entered by him on June 6, 1962 which purports to reinstate an ouster suit originally brought by the State against Charles H. Meyer, the Sheriff of Jefferson County, Texas. Article 5970 et seq., Vernon's Ann.Tex.Civ.Stats. The State also sought vacation of the ancillary injunctive orders contained in said decree of June 6th. Our original jurisdiction is invoked under the provisions of Article 1733, Vernon's Ann.Civ.Stats. See, State v. Ferguson, 133 Tex. 60, 128 S.W.2d 272.

Briefly stated, the circumstances giving rise to this case are these:

On March 27, 1961, an ouster suit on behalf of the State was filed against Meyer in the 60th District Court and docketed as Cause No. B-77,303. Various proceedings were had in this cause; a cross-action was filed by Meyer, the petition was amended and attempts made to take depositions. These need not be examined in detail because on May 21, 1962 the State moved to discontinue the cause 'without prejudice to the right of the defendant to be heard on his counterclaim.' This motion was contested by the defendant but the Court sustained the motion and ordered a dismissal of the ouster suit.

On May 31, 1962, at a time when no ouster suit was pending in the 60th District Court, the State of Texas, through W. G. Walley, Jr., the acting Criminal District Attorney of Jefferson county, filed an ouster suit in the 136th District Court of Jefferson County against Meyer. 1 This suit was docketed as Cause No. D-79,254. After citation was ordered issued on the petition, Article 5979, a motion requesting that Sheriff Meyer be suspended from office was also filed. Article 5982.

On May 31, 1962, the Honorable Connally McKay, 2 who was presiding as judge of the 136th District Court, entered an order temporarily suspending Meyer from the office of Sheriff of Jefferson County and appointing Richard E. Culbertson to discharge the duties of such office 'for the time being and during the pendency of the suit.' This order recited that the requirements of Article 5979 as to citation, etc. had been complied with. Culbertson duly qualified as acting sheriff by complying with the provisions of Article 5982.

Also on May 31, 1962 and about thirty minutes after the rendition of Judge McKay's order suspending Sheriff Meyer from office, the Honorable Gordon D. Gary issued a temporary restraining order enjoining and restraining Richard E. Culbertson from acting or purporting to act as Sheriff of Jefferson County or from interfering in any way with Charles H. Meyer in the conduct of the office of Sheriff of Jefferson County. This restraining order remained in force until June 1st at 10 A.M., when it was continued until June 6, 1962 at which time Judge Gary extended the terms of the temporary restraining order against Culbertson 'until further order of this Court.' The result of this order was to bring about a judicial impasse. Sheriff Meyer cannot act as sheriff without violating the order of the 136th District Court suspending him from office. Mr. Culbertson cannot act as sheriff without violating an injunction of the 60th Judicial District. In effect Jefferson County, with a population of 245,659, is left without a chief law enforcement officer.

The order of June 6, 1962, as well as the restraining orders heretofore mentioned, were all entered in Cause No. B-77,303 on the docket of the 60th District Court. The Court, by its order of June 6th, sought to reinstate this dismissed ouster suit over the protest of the Criminal District Attorney by directing that the State's amended petition and suit in said Cause No. B-77,303 'be and the same is hereby reinstated on Defendant's Amended Motion therefor.'

This provision purporting to reinstate the cause and reassert jurisdiction over the subject matter of the suit is the basic clause here involved. The injunctive orders relating to Mr. Culbertson, as well as those provisions of the June 6th decree, restraining the parties representing the State, i. e., the relators and the Criminal District Attorney from taking any further action in the cause pending in the 136th District Court, No. D-79-254, or 'in any other court excepting an appellate court' are ancillary to and dependent upon the order reinstating said Cause No. B-77,303. If reinstatement falls, the ancillary orders fall with it.

As we view the case the controlling question presented is whether or not a District Court having relinquished jurisdiction over a statutory ouster cause may thereafter reassert jurisdiction over such dismissed cause, so as to defeat the jurisdiction of another co-ordinate court which acquired jurisdiction of the ouster suit at a time when there was no ouster suit pending on the docket of the first court mentioned.

Article 5, § 24 of the Texas Constitution, Vernon's Ann.St. and Title 100 of the Revised Civil Statutes (Articles 5961 to 5997, inclusive, Vernon's Ann.Tex.Stats.) relate to the removal of certain public officers. Articles 5970 to 5987, inclusive, provide that a district judge may remove a sheriff as well as other designated officers from office and prescribe the procedures that govern such suits. The remedy of ouster is one which 'belongs to the state, in its sovereign capacity, to protect the interests of the people as a whole and guard the public welfare by ousting incumbents of office who wrongfully hold to the injury of the public.' State Railroad Commission v. People, 44 Colo. 345, 98 P. 7, 22 L.R.A.,N.S., 810. In such proceeding the district attorney is a proper representative of the State and by virtue of his office has control of the prosecution of the cause. Article 5, § 21, Constitution of Texas; Staples v. State ex rel. King, 112 Tex. 61, 245 S.W. 639; Reeves v. State ex rel. Mason, 114 Tex. 296, 267 S.W. 666; State ex rel. Hancock v. Ennis, Tex.Civ.App., 195 S.W.2d 151, ref. n. r. e. Except where otherwise provided by statute, the rules of practice governing other civil cases control. Article 5981.

Under the procedures set forth and clearly inferable from the pertinent constitutional and statutory provisions, as well as under the express wording of the Texas Rules of Civil Procedure, it appears that the district attorney, as leading counsel for the State, was empowered to discontinue Cause No. B-77,303 on the docket of the 60th District Court. State ex rel. Hancock v. Ennis, Tex.Civ.App., 195 S.W.2d 151, ref. n. r. e.; Ex parte Norton, 118 Tex. 581, 17 S.W.2d 1041.

In Norton's case above mentioned, the plaintiff, J. F. Norton, took a nonsuit under Article 2182 from which Rule 164 is taken with no change in verbiage. The court refused to allow the nonsuit until the plaintiff should pay up some back alimony. The case came to this Court upon habeas corpus with Norton contending that the order of contempt entered as a result of his refusal to pay such back alimony was void. This Court agreed with this contention and held that the right to take a nonsuit is absolute and unqualified when a motion therefor is made before the jury has retired, in a jury case, or before the judge has announced his decision in a nonjury case. This Court further said:

'Had the court granted relator his legal rights and dismissed the divorce suit when he in open court took a nonsuit, he would have lost jurisdiction of the divorce proceedings as such, and would have had no power or jurisdiction to enter a contempt order for failure of relator to pay alimony, and, had the relator been accorded the right which was absolutely given him under the statute, there would have been absolutely no way to enforce the payment of the back alimony claimed by the wife. Wright v. Wright, 6 Tex. 29. Inasmuch as the relator had the right to dismiss his divorce action, and thus end the divorce proceedings, we are of the opinion that the trial court could not prejudice his rights by refusing to allow the nonsuit and dismiss the suit for divorce.'

The order of contempt which was rendered subsequent to the motion for nonsuit was held void and Norton was discharged.

Norton's case would seem conclusive of the question before us unless a valid distinction can be made between that case and this one based upon the circumstance that in Cause No. B-77,303 (60th District Court), Meyer had filed a cross action and the order permitting the State to nonsuit was entered 'without prejudice to the right of the defendant to be heard upon his counterclaim.'

Seemingly the prosecution of a cross action in a statutory ouster suit is a procedure without precedent. Counsel has cited, and we have found, no reported case in which a cross action was considered in connection with an ouster suit brought under the Texas constitution and statutes. When we consider the nature of the remedy which, as above pointed out, is a remedy prosecuted by the State in its sovereign capacity, it is difficult to imagine a set of circumstances...

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  • McGee v. Estelle
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