Waites v. Sondock

• Decision Date: 20 June 1977
• Docket Number: No. B-6611,B-6611
• Citation: 561 S.W.2d 772
• Parties: Mary Elizabeth WAITES, Relator, v. Ruby SONDOCK, Judge, et al., Respondents.
• Court: Texas Supreme Court

Page 772

561 S.W.2d 772

Mary Elizabeth WAITES, Relator,

v. Ruby SONDOCK, Judge, et al., Respondents.

No. B-6611.

Supreme Court of Texas.

June 20, 1977.

Cooper & George, Gordon R. Cooper, II, Houston, for relator.

Craig Washington, Houston, for respondents.

YARBROUGH, Justice.

This is an original mandamus action in which relator, Mary Elizabeth Waites, seeks issuance of the writ to compel Judge Ruby Sondock, judge of the court of domestic relations in Harris County, to set aside an order granting a legislative continuance and to proceed to trial.

The continuance was granted in a contempt proceeding filed by Ms. Waites (the mother) to compel her former husband, Ronald Edward Waites (the father), to comply with a child support order. The support payments were ordered in a March 10, 1971, divorce decree, which required the father to pay $100.00 per month to the mother for support of their minor daughter. In her motion for contempt the mother claimed that the father was $4,600.00 in arrears in these payments. The court set the motion for hearing, but on December 9, 1976, the matter was reset for January 13, 1977, apparently on the father's motion. In the meantime, the Honorable Craig A. Washington, a member of the Texas House of Representatives became the attorney for the father. On January 13, 1977, Representative Washington filed an Affidavit and Motion for Legislative Continuance in which he requested that the contempt action be continued pursuant to Tex.Rev.Civ.Stat.Ann. art. 2168a (Supp.1976), until at least thirty days after May 31, 1977, the closing date for the Regular Session of the Sixty-fifth Legislature.

In her motion opposing the continuance, the mother stated that she was in "dire need of support payments," that the father had made no payments since May 28, 1975, and that over her physician's objections she had been forced to take a second job in order to support her daughter. Upon the basis of a sworn motion, Judge Sondock granted the legislative continuance without hearing any evidence in support of these allegations. On March 7, 1977, the mother filed her Motion for Leave to File Petition for Mandamus. We granted leave to file in order that we might consider the constitutional question that we reserved in Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560 (Tex.1963), and in Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975): whether the legislature constitutionally may require mandatory continuances of causes or suits involving legislators when the party opposing the continuance or a person in their charge faces irreparable harm from the delay in enforcing existing rights. ¹ We now hold that mandatory continuances under such circumstances violate the due process clause of the Fourteenth Amendment of the United States Constitution and Article I, sections 13 and 19 of the Texas Constitution.

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 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.

Article 2168a represents a legislative determination that the interests of the people of the State will best be served by the attendance of legislator-attorneys at legislative sessions. We have held in the past that article 2168a promotes the public welfare by relieving legislators of the burden of choosing between serving in the legislature and appearing as a party or as an attorney in a pending suit during such sessions. Government Services Insurance Underwriters v. Jones, supra; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759 (1947). By couching article 2168a in mandatory terms, the legislature, in effect, has decreed that the public policy behind that statute shall always take precedence over whatever the needs of individual litigants for access to the adjudicative power of courts. Since postponing adjudication of a dispute generally will not give rise to any injury over and above the inconvenience associated with delay, the legislature could have reasonably concluded that in the ordinary case the policy behind article 2168a would outweigh an individual's need for access. Article 2168a, however, makes no provision for those cases in which delay will cause an injury that cannot be remedied later, an injury over and above the common inconvenience of delay, an injury that can only be prevented by immediate access to the court. The legislature has created an irrebuttable presumption that the policy behind article 2168a is entitled to prevail in all cases, except temporary restraining orders.

Article I, section 13 of the Texas Constitution provides:

. . . All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

This provision prohibits "legislative bodies from arbitrarily withdrawing all legal remedies from one having a cause of action well established and well defined in the common law". Lebohm v. City of Galveston, 154 Tex. 192, 197, 275 S.W.2d 951, 954 (1955). In Lebohm this court went on to say:

(L)egislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one's "lands, goods, person or reputation" is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.

154 Tex. at 199, 275 S.W.2d at 955.

Article 2168a effectively withdraws the common law remedy of litigants who, in emergency situations, seek to enforce court decrees and obtain other relief other than by a temporary restraining order. ² Although article 2168a appears on its face merely to postpone pending suits and matters ancillary thereto, in the present case the delay in enforcement caused by the legislative continuance allegedly inflicts harm that is not susceptible to remedy at a later date. The mother here claims that the support payments are critical to her ability to feed and support her children. The trial court, after the expiration of the continuance, may force the father to pay any overdue sums, but these payments will not compensate the child for any injury resulting from the mother's present inability to care for the child. ³ The legislative basis for withdrawing the mother's remedy the presumption that the policy behind article 2168a outweighs a litigant's right of redress is arbitrary and unreasonable when, in situations such as this, a party allegedly faces irreparable injury from inaction. Clem v. Evans, 291 S.W. 871 (Tex.Com.App.1927, holding approved); see also Cleveland Board of Educaton v. LaFleur, 414 U.S. 632, 644, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).

The courts of other states also have rejected arguments that legislative continuance statutes are mandatory in situations of emergency or irreparable harm. In A.B.C. Business Forms, Inc. v. Spaet, 201 So.2d 890 (Fla.1967), the trial judge granted a legislative continuance because he felt the statute left him with no discretion to do otherwise in spite of the showing of irreparable harm by the party opposing the continuance. The Florida Supreme Court, in ordering the trial court to hold a hearing, stated:

(T...