Untitled Texas Attorney General Opinion ( 1971 )

.
%m!rE A NE-%-
OF
November 4, 1971
Hon. Preston Smith Opinion No. M-988
Governor of Texas
State Capitol Building Re: Questions relating to the
Austin, Texas disqualification of a
county judge to preside
in a lawsuit, pursuant to
Article 1931, Vernon's
Bear Governor Smith: Civil Statutes.
Your recent letter (with exhibits annexed thereto)
to this office requesting our opinion concerning the referenced
matter states, in part, as follows:
"The Governor has received a formal cer-
tificate of disqualification from a county judge
(see Exhibit A) stating that he is disqualified to
serve in a case because he has been ccxlnsel for the
prospective defendant involved in the case. The
attorney for the plaintiff has urged the Governor
to appoint a special judge in the case, stating
that the parties have failed to agree on a special
judge and that therefore, the requirements of Art-
icle 1931 have been met. (See Exhibit B).
"The county judge has stated that he
regards his original certificate as insufficient
in that it must certify not only that he is dis-
qualified but als,o that the parties have failed
to agree. (See Exhibit C). The judge further
states that Article 1931 requires that he wait
until after Septembes 30, 1971, which was 'the end
of the term of court, in order to certify that
the parties have failed to agree. As of October
6, 1971, we have not,received a formal certifi-
cation from the judge certifying that the parties
-4817-
r .
Don. Preston Smith, page 2 (M-988)
have failed to agree. The counsel for the plaintiff
continues to urge the Governor to appoint a special
judge.
"Therefore, we respectfully request your
opinion as to the following:
"1" Does Article 1931 require that
a county judge wait until the end of the
term of court before certifying that the
parties failed to agree on a special judge?
"2 . May the Governor, under Article
1931, appoint a special judge after he has
received a formal certificate of disquali-
fication from a county judge and after his
investigation reveals that the parties have
failed to agree upon a special judge?
"3 D May the Governor, under Article
1931, appoint a special judge upon receiving
a formal certificate of disqualification
from the county judge and an affidavit from
one of the counsel in the case stating that
the parties cannot agree and have no reason-
able expectation of agreeing on a special
judge?"
Article 1931, Vernon's Civil Statutes, provides as
follows:
"Whenever a judge of the county court is
disqualified to try a civil case pending in the
county court, and the parties shall fail at the
first term of the court to agree upon a special
judge, the judge shall certify his disqualification
to the Governor and the failure to agree upon an-
other to try the same, whereupon the Governor
shall appoint some person, learned in the law to
try such case,"
-4818-
Hon. Preston Smith, page 3 (M-988)
Several other constitutional and statutory provisions
also pertain to the disqualification of county judges. These
statutes are apposite to your inquiries, inasmuch as
"It is a settled rule of statutory inter-
pretation that statutes that deal with the same
general subject, have tha same general purpose, or
relate to the same person or thing or class of per-
sons or things, are considered as being in pari
materia though they contain no reference to one
another. and though they were passed at different
times or at different sessions of the legislature."
53 Tex.Jur.2d 280, Statutes, Sec. 186.
The last sentence of Section 16 of Article V of the
Constitution of Texas, which establishes the county courts of
Texas, provides as follows:
"When the judge of the County Court is
disqualified in any case pending in the County
Court the parties interested may, by consent,
appoint a proper person to try said case, or upon
their failing to do so a competent person may be
appointed to try the same in the county where it
is pending in such manner as mav be prescribed bv
a. " (emphasis added,)
The Interpretive Commentary to the foregoing provision
states that:
H . . . (I)t has been held that the
parties must make a bona fide effort to agree on
a special judge . ~ . d but if durins the first
term the case is reached for trial without an
aqreement, or if at the end of the first term
the parties have failed to aqree, the iudqe must
then certifv his disqualification to the qover-
nor, who appoints a person learned in the law
as a special iudqe. See Vernon's Ann.Civ.St.
arts. 1931, 1933." (emphasis added,)
-4819-
lion. Preston Smith, page 4 (M-988)
The counterpart of Article 1931 in criminal law is
Article 30.03, Texas Code of Criminal Procedure, which provides
that:
"When the judge of the county court or
county court at law, or of any county criminal
court, is disqualified in any criminal case pend-
ing in the court of which he is judge, the parties
may by consent agree upon a special judge to try
such case. If they fail to agree upon a special
judge to try such case, on or before the third day
of the term at which such case may be called for
trial, the practicing attorneys of the court pres-
ent may elect from among their number a special
judge who shall try the case. The election of the
special judge shall be conducted in accordance with
the provisions of Article 1887, et seq., V.A.C.S."
(emphasis added.)
The Interpretive Commentary to the foregoing provision,
written by the Honorable John F. Onion, Jr., Presiding Judge of
the Court of Criminal Appeals, states, in part, as follows:
"Under the old article if the judge of
the county court D . D was disqualified, the par-
ties by consent could agree upon a special judge
to try such case. If thev fail to agree upon a
special judge to try such case, the iudqe oresid-
inq was then required to certify the fact to the
Governor who would then appoint some practicing
attorney to try the case as a special judge. In
the revision of this article the assignmentby the
Governor is eliminated. . o *" (emphasis added.)
Article 3266, Vernon's Civil Statutes, deals with the
disqualification of a county judge when he is sitting in condem-
nation matters. That Article provides, in pertinent part, that:
-4820-
Hon. Preston Smith, page 5 (M-988)
"1 . When the county judge is disqual-
ified to act in the case, and the parties fail to
agree upon a special judge, he shall certifv such
disqualification upon the petition or statement
filed with him, and file it with the county clerk,
who shall make a certified copy thereof and of the
endorsement thereon and forward the same to the
Governor, who shall appoint some person learned
in the law to act as special judge, and such
special judge when appointed and qualified, shall
proceed with the case to its final conclusion, or
the parties may agree upon a s@cial judge."
(emphasis added.)
In regard to your first question, we are of the opin-
ion that Article 1931 does not require that a county judge wait
until the end of the first term of court before certifying that
the parties failed to agree on a special judge.
The language of Article 1931, relating to when the
judge must file his certificate of disqualification states only
that, if the parties shall fail "at the first term of the court"
to agree on a special judge, the judge shall certify his dis-
qualification to the Governor. Further, the Interpretive Com-
mentary to Section 16 of Article V of the Constitution, whence
Article 1931 is derived, states that the judge shall certify
his disqualification to the Governor at the end of the first
term, or durinq the first term if the case is reached for trial.
Also, Article 30.03, Texas Code of Criminal Procedure,
quoted supra, requires the election of a special judge if the
parties cannot agree on a special judge "on or before the third
day of the term at which such case may be called for trial".
We believe that Articles 1931, when construed -in pari
materia with the other foregoing authorities, and in consonance
with their intent and purpose, requires a county judge to certify
his disqualification to the Governor at the time when the parties
have definitely failed to agree on a special judge. If the par-
ties have failed to reach agreement on the special judge early
-4821-
Eon. Preston Smith, page 6 (M-988)
in the course of the term, we find no authority in Article 1931,
or elsewhere, for the judge delaying the certificate of his dis-
qualification to the end of said term.
Your first question is, therefore, answered in the
negative.
Your second and third questions involve basically the
same issue, which is: May the Governor appoint a special judge
upon his receipt of the judge's certificate of disqualification,
where such certificate certifies only the judge's disqualifica-
tion, but does not certify the fact of the parties' failure to
agree upon a special judge?
The certificate of disqualification annexed to your
letter as Exhibit "A" merely states that the judge is disqualified,
and does not also recite that the parties have failed to aqree on
a special judge. The case of Clement8 v. Fort Worth & D. S. P. Ry.
Co., 7 S.W.2d 895 (Tex.Civ.App. 1928, no writ)., was aneminent do-
rnxn action in which the county judge certified his disqualification
to the Governor and also certified that the parties failed to agree
upon a special judge: the court found that, in fact, there was a
failure by the parties to attempt to agree to a special judge in
the first place, The court quoted Article 1931, among others, and
went on to say that
. . e (B)efore a special judge can be
appointed or selected, the conditions pointed out
by the Constitution and the statute must exist be-
fore such selection or appointment of the special
judge is valid." 7 S.W.2d at 898.
Article 1931 quite clearly requires that the county
judge "shall certify his disqualification to the Governor and the
failure to agree upon another to try the same" (emphasis added),
unlike the provisions of'its sister statutes quoted supra. We
read that clause of Article 1931 as being conjunctive in ite mean-
ing , and therefore hold that a county judge must certify not only
his disqualification to the Governor, but also must certify the
failure of the parties to agree on a special judge, before the Gw-
ernor may exercise the power of appointment provided by Article 1931.
-4822-
Hon. Preston Smith, page 7 (M-988)
We believe that those portions of your second and third
questions relating to the establishment of~the fact of the parties'
failure to agree on a special judge, by independent investigation
by the Governor, or by affidavit from counsel for one of the par-
ties, are answered by the case of Summerlin v. State, 153 S.W.
890 (Tex.Crim. 1913). which held that
II . . . (W)here the mode of selection of
special or substitute judges is prescribed by law,
and the causes for such selection are indicated,
other modes and other causes are thereby excluded.
This is especially true if these are set forth in
the Constitution.,
"It is also laid down, as a correct rule,
that parties cannot, independentlv of constitiition-
al or statutorv provision, confer judicial authority;
and, where this is attempted, a judgment by the
appointee is a nullity. . . .ll 153 S.W. at 892.
(emphasis added.)
Because neither the Constitution nor the statutes pro-
vide for either an independent investigation on the part of the
Gwernor concerning the failure of the parties to agree, or for
the establishment of such fact by affidavit of counsel, your
second and third questions must be answered in the negative.
S UH M A R Y
c
Pursuant to Anficle 1931, Vernon's Civil
Statutes,
(1) a county judge ,is required to file his
certificate of disqualification with the Governor
during, or at the end of, the first term of court,
and such certificate should be filed when it is
definitely established that the parties cannot
agree upon a special judge, there being no require-
ment in the Article that the judge wait until the
end of the term to file such certificate:
-4823-
.
Hon. Preston Smith, page 8 (~-988)
(2) in order for a certificate of disquali-
fication to be fully valid and to enable the Gov-
ernor to appoint a special judge, the certificate
must recite not only that the judge is disqualified,
but also that the parties have failed to agree upon
a special judge;
(3) there is no authorization in the Article
for either an independent investigation on the part
of the Governor, or for the establishment of the
fact of the parties' failure to agree on a special
judge by means of an affidavit of counsel, and ~such
failure of the parties to agree on a special judge
must be established by the judge's certificate of
disqualification: and
(4) a county judge has a mandatory duty to
certify his disqualification, and to certify that
the parties cannot agree on a special judge, as
soon as such is the case.
General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION CCMMITTBE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
-4824-
. .
Hon. Preston Smith, page 9 (M-988)
James A. Maxwell
Lonny Zwiener
Jack Sparks
Dyer Moore
SAM MCDANIEL
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLAWHITE
First Assistant
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