Swinford v. Logue

• Decision Date: 15 May 1958
• Docket Number: No. 3578,3578
• Citation: 313 S.W.2d 547
• Parties: Henry SWINFORD, Relator, v. Hon. Bill LOGUE, Respondent.
• Court: Texas Court of Appeals

Page 547

313 S.W.2d 547

Henry SWINFORD, Relator, v. Hon. Bill LOGUE, Respondent.

No. 3578.

Court of Civil Appeals of Texas, Waco.

May 15, 1958.

Rehearing Denied May 28, 1958.

F. M. Fitzpatrick, Jr., Waco, for relator.

Donald Hall, Asst. Dist. Atty., Waco, for respondent.

Russell G. Poling, E. M. Scott, Austin, amicus curiae.

McDONALD, Chief Justice.

Henry Swinford, hereafter referred to as Relator, filed this proceeding seeking a writ of mandamus from this court to compel Honorable Bill Logue, County Judge of McLennan County, to impanel a jury for the trial of Cause No. 17868 styled 'in re: Petition of Henry Swinford, By Next Friend', now pending on the docket of the County Court of McLennan County, Texas, and to proceed to trial with jury of such cause.

The foregoing cause is a restoration proceeding. The facts are undisputed. Relator alleged that he had in times past been adjudged to be a person of unsound mind and committed to the custody of the U. S. Veterans Administration Hospital in Waco, Texas, where he is now confined and restrained of his liberty as a mentally incompetent person, but that in truth he is not mentally incompetent or of unsound mind, but has been restored to his right mind. Thereafter a jury fee was timely deposited with the County Clerk of McLennan County and written motion was made by Relator to have his cause tried with a jury. The Honorable Bill Logue, County Judge, overruled Relator's motion for trial by jury on the ground that Article 5547-82(e). Vernon's Texas Civil Statutes, is mandatory that such trials shall be before the court without a jury.

Relator seeks mandamus to compel Respondent to try his cause with a jury, asserting that Article 5547-82(e), supra, is violative of our Constitution.

Article 5547-82 provides for re-examination, hearing and discharge of persons who have theretofore been adjudicated as mentally ill. After prescribing certain procedures in the County Court for the restoration hearing, subdivision (e) thereof provides:

'The hearing shall be before the court without a jury.'

Article 1, Section 15 of the Constitution of Texas, Vernon's Ann.St. provides: 'The right of trial by jury shall remain inviolate.' The construction and interpretation of that clause is that the right of trial by jury shall be available in those cases in which the right existed at the date of the adoption of the Constitution, i. e., in those cases where the right to trial by jury was provided at common law. White v. White, 108 Tex. 570, 196 S.W. 508, L.R.A.1918A, 339. The criteria of constitutionality of probate provisions wherein trial by jury is denied are set forth in Cockrill v. Cox, 65 Tex. 669, 674, as follows:

'The right of jury trial remains inviolate, though denied in the court of first instance (in civil cases), if the right to appeal and the jury trial on appeal are secured.'

Article 5547-82 of the Texas Mental Health Code purports to be a complete and exclusive procedure for restoration, hearing and discharge, which became effective January 1, 1958, as a complete repeal of a series of restoration statutes (formerly Art. 5561a, V.A.C.S.). The repealed statutes expressly provided for trial by jury in the County Court in restoration actions and in addition provided for an appeal to the District Court for a trial by jury (de novo).

The repealing statute (Article 5547-82) contains provision '(e) The hearing shall be before the court without a jury.' Further, there is no provision for an appeal to the District Court (or elsewhere) for a trial before a jury.

We think that where the Legislature specifically denies the right of trial by jury in the first instance in County Court, and does not provide for an appeal to the District Court or elsewhere where a jury trial can be obtained, the provision is violative of Section 15 of Article I of our Constitution, if trial to a jury was available at the time of the adoption of our Constitution.

We note that the Mental Health Code provides for trial by jury (Article 5547-48) upon original commitment for mental illness.

In the original proceeding mental illness or sound mind is the question for determination. A determination of mental illness results in restraint and loss of liberty. In a restoration hearing the question for determination is the same--is the Relator mentally ill or a person of sound mind? If he is mentally ill, restraint and detention follow. We fail to perceive the difference in these respects in a restoration hearing and in an original proceeding. We think there is none, and that denial of a jury in either instance is unconstitutional.

In 1913 our Legislature passed a statute which substituted a Commission of Doctors in lieu of a jury for the purpose of determining the question of lunacy. Such act was declared unconstitutional in White v. White, 108 Tex. 570, 196 S.W. 508, L.R.A.1918A, 339, affirming Tex.Civ.App., 183 S.W. 369 (the El Paso Court). The Amarillo Court, in Loving v. Hazelwood, Tex.Civ.App., 184 S.W. 335, Writ Refused, further declared such act...