State v. Starley, 286

• Decision Date: 09 March 1967
• Docket Number: No. 286,286
• Citation: 413 S.W.2d 451
• Parties: STATE of Texas et al., Appellants, v. The Honorable J. H. STARLEY et al., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 451

413 S.W.2d 451

STATE of Texas et al., Appellants, v. The Honorable J. H. STARLEY et al., Appellees.

No. 286.

Court of Civil Appeals of Texas Corpus Christi.

March 9, 1967 Rehearing Denied and Respondent Starley's Motion to Modify Opinion Denied April 6, 1967.

Hawthorne Phillips and Roger Tyler, Jr., Austin, Neal King, of Hill, King & McKeithan, Mission, Frank Booth, Executive Director, Texas Water Right Commission, Austin, Garland Smith, Weslaco, Paul Greenwood, of Greenwood & Russell, Harlingen, for relators.

J. H. Starley, Pecos, pro se.

Melbert Schwarz, Jr., Baker, Botts, Shepherd & Coates, Houston, Albert E. Coneway, Harlingen, E. C. Henrichson, of Henrichson & Bates, Edinburg, Geo. D. Byfield, of Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, for respondents.

OPINION

NYE, Justice.

This is an original proceeding filed in the Court of Civil Appeals seeking a writ of mandamus directing the Honorable J. H. Starley, Judge of the 93rd District Court of Hidalgo County to proceed to enter a final judgment in Cause No. B--20,576 on the docket of that court. The question involved is whether the judgment rendered and signed is a final appealable judgment or whether because of certain language contained therein, the judgment is interlocutory and therefore no appeal may lie.

The judgment before us consists of a foreword, a decree, a decision, extensive tables, maps and indices, all of which cover more than one thousand legal size pages. The record shows that a tentative draft of this judgment was handed down by the trial judge and distributed to the parties. All parties were given until July 15, 1966 to point out errors and mechanical mistakes to the court. A number of motions pointing out such errors and mistakes were filed and heard by the court. After making certain corrections and alterations to the tentative judgment the Honorable J. H. Starley, District Judge, signed and entered on August 1, 1966 what relators say 'purports to be a final judgment.' They say that certain language in the trial judgment by which the trial judge attempts to retain perpetual and continuing jurisdiction to change the water rights adjudicated, was objected to. Motions and oral argument by various parties were made advising the trial court the effect of such language and urging the court to make appropriate changes in such language in order that the judgment would be final and appealable. Judge Starley disagreed.

The judgment contains one certain paragraph, among others, which relators contend makes the instrument purporting to be the judgment of the court so intrinsically interlocutory in character that this appellate court will be without jurisdiction to reach the merits of this case on appeal. This paragraph is as follows:

'THIS COURT RETAINS JURISDICTION OF THIS CAUSE AND THE ISSUES EMBRACED HEREIN AND UPON GOOD CAUSE SHOWN, MAY FROM TIME TO TIME MODIFY, ENLARGE OR ABROGATE ANY PORTION OR FEATURE OF THIS DECREE OR OF THE DECISIONS AND TABLES AND SECTIONS FILED HEREWITH AND MADE A PART HEREOF, BY ORDER OR SUPPLEMENTAL JUDGMENT OR DECREE TO BE ENTERED AT THE FOOT HEREOF * * *.'

Respondent Starley in defense of the language contained in this paragraph summarizes his reaction to it in his brief by saying:

'This 'open end' type of decree and judgment is not unusual, unique or an unheard of innovation by the trial court. While an exception to the general rule, it is in common usage in stream adjudications * * *.'

The Supreme Court of Texas has characterized this particular case as one of great magnitude. ¹ In order that we make a proper determination of the questions involved, it is necessary to review briefly the historical background of this litigation.

This class action suit was originally filed as Clause No. B--20,576 in the 93rd District Court of Hidalgo County, Texas, in 1956. The trial court took judicial custody of the American share of the waters of the Rio Grande River on October 17, 1956 from Falcon Reservoir to the Gulf of Mexico. The lawsuit was instigated by the State of Texas, by and through the Texas Water Commission as plaintiff. The Fifth Amended Original Petition, being the trial petition, ² as well as the judgment shows that this is a lawsuit to adjudicate the water rights on this segment of the Rio Grande River system. ³ The Honorable W. R. Blalock, then Judge of the 93rd District Court presiding, certified his disqualification. An original mandamus proceeding was then filed in 1957 in the Supreme Court seeking to compel Judge Blalock to proceed to trial and judgment. The importance of this particular lawsuit was noted by the Supreme Court in its opinion wherein that Court stated that ordinarily they will not entertain jurisdiction of an original mandamus proceeding in a case where like jurisdiction is conferred upon the Court of Civil Appeals, unless it is made to appear that relief was first sought in that court. ⁴ The Court announced that this rule would not be followed in a case like the instant one where the question involved is of great importance to the state as a whole. It was argued that the qualifications of Judge Blalock should be determined by the Supreme Court because of the importance of this case and the gravity of the mistake which would be made if after having the case tried it should later be determined that Judge Blalock was disqualified. This same argument is presented to us to the effect that if it should later be determined that the judgment was not a final judgment, the appeal would have to be dismissed and the case returned to the trial judge for further proceedings or entry of a different judgment. The Supreme Court accepted jurisdiction and found Judge Blalock not disqualified and conditionally granted the writ of mandamus.

Subsequently, Judge Blalock was succeeded to the bench of the 93rd District Court by the Honorable Magus Smith. In 1961 the presiding judge of the Fifth Administrative Judicial District assigned the Honorable Woodrow Laughlin, Judge of the 79th District Court to serve as Judge of the 93rd District Court during the month of August . An attack was made on the qualifications of both Judge Smith and Judge Laughlin. ⁵ Judge Smith was held disqualified because he was attorney and counsel for certain named parties prior to his elevation to the bench. Judge Laughlin, sitting temporarily as Judge of the 93rd District Court, was held not disqualified to act.

Because of the disqualification of Judge Magus Smith, the Chief Justice of the Supreme Court, pursuant to art. 200a, Vernon's Ann.Tex.Rev.Civ.Stat.Ann., § 2a(3), assigned Judge Starley special judge to preside over the full trial of this case (Cause No. B--20,576 in the 93rd Judicial District Court). Judge Starley was a resident of Pecos, Texas and duly elected Judge of the 143rd Judicial Court and was so designated on June 15, 1962. There was no question concerning his qualification at that time. However, in 1963, an original mandamus proceeding was again filed in the Supreme Court of Texas because Judge Starley refused to proceed to trial because of a question of his qualifications as judge due to his marriage in that year and the relationship of his wife to two parties owning land in the water districts involved in the lawsuit. One concerned Mr. Bingley, brother of Mrs. Starley's mother, who was Director of Cameron County Water Control & Improvement District No. 16, one of the defendants in the suit. The Honorable Paul A. Martineau, Judge of the 28th District Court, sitting for Judge Starley, dismissed this defendant as a party, after his resignation as director, and Judge Starley's qualifications as judge were held valid. ⁶ Other aspects of this same case were finally determined in a prior appeal. ⁷

This case is now popularly referred to as 'The Valley Water Case'. Much has been written about the importance and cost involved. ⁸ Over ten years have now passed and this case is now at the threshold of the appellate courts. There are many, many parties to the cause. It therefore is incumbent upon us to determine at the outset whether the relators and respondents in this mandamus proceeding fairly represent all classes claiming rights in and to the waters of the Rio Grande River.

The State of Texas as plaintiff and the other relators are all parties to this suit and are listed on Exhibit A of the petition for mandamus. The respondents are the Honorable J. H. Starley, Judge Presiding of the 93rd District Court of Hidalgo County and one or more individuals or corporations representing the following classes: 'certified filings', 'permits', 'treaty', 'Falcon' and 'no water rights.' Relators' petition avers that the parties are so numerous it makes it impractical to bring them all before this Court in this mandamus action. However, they contend that the various classes fairly represent all parties adverse to relators in this the 'Valley Water Suit.' Notwithstanding all of the possible controversies which may arise on appeal, all of the attorneys of record in the said 'Valley Water Suit' have been given notice of the petition for mandamus and it is further contended that the respondents represent all classes of claimants of all of the various rights or lack of rights in and to the use of the water of the Rio Grande River. Service has been had on the representative members of the various classes set forth above. These particular allegations in the petition are not denied by any of the respondents and we accept them as true. Such class action procedure in a mandamus proceeding is applicable the same as in other proceedings. Hidalgo County Water Improve. Dist. No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593; City of Houston v. Allred, 123 Tex. 334, 71 S.W.2d 251 (Tex.Comm'n App.1934, opinion adopted). We hold that the joinder of the named respondents herein, fairly insures the adequate representation of all members of the various classes.

Respondent W. H. Drawe, individually and representative of...