Untitled Texas Attorney General Opinion ( 1969 )

ERAL,
AUSTIN. TEXAS 78711
CRAWFORD C. MARTIN
ATTORNEY GENIERAL
September 17, 1969
Honorable Sam I,.Gayle, Jr. Opinion No. M- 473
County Attorney
Jackson County Re: Whether, under the facts
Edna, Texas submitted, a County Judge
is disqualified from pre-
siding at condemnation
trials and related ques-
Dear Mr. Gayle: tiorls.
In your request for an opinion from this office, you
submit the following facts:
“The County Judge of Jackson County has
refused to preside at condemnation proceedings
in this County. A special judge has been ap-
pointed to preside at these hearings by consent
of the parties and County funds are being used
by order of the Commissioners Court to pay said
special judge. This payment together with the
court order for same, is evidenced by the en-
closed photo-copy. Ih no condemnation case
which I have reference to have the parties
thereto objected to the regular County Judge
presiding or has any hearing been held and it
determined therein that the said Judge is dls-
qualified by law.
“Further, in none of these cases does it
appear that the County Judge is disqualified
to serve by reason of either kinship to the
parties, an interest in the subject matter of:
the suit, or has he been of counsel therein.
With regard to these facts, you ask the following
questions, which we quote as follows:
“(1) Is the County Judge disqualified
from presiding at condemnation proceedings by
reason of his appointment of special commis-
sioners to assess damages in said cases?
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Hon. Sam L. Gayle, Jr., page 2 (M-473)
"(2) Does any case, statute, or law per-
taining to this State allow the County Judge to
disqualify himself from presiding on condemna-
tion cases when he is not legally disqualified?
“(3) Can County Funds be expended to pay
a special County Judge who has been appointed by
consent of the parties to preside at condemna-
tion proceedings when the regular County Judge
is not legally disqualified from presiding at
said condemnation proceedings In County Court?"
Section 11, Article V, Constitution of Texas, provides,
in part, as follows:
"No judge shall sit in any case wherein
he may be interested, or where either of the
parties may be connected with him, either by
affinity or consanguinity, within such a
degree as may be prescribed by law, or when
he shall have been counsel in the case. . , .'
In reference to this constitutional provision, it is
stated in 33 Tex.Jur.2d, 391-392, Judges, g27, as follows:
1,
. . .These inhibitions are not only
mandatory, they are exclusive; that *a, they
specify all the circumstances that forbid a
judge to sit. Thus, a judge is not disqualified
because of bias or prejudice, because of pre-
vious rulings made by him, nor because 2f in-
ability to attend to his duties. . . .
Thus, where It is not shown that a County Judge has
any interest in a county condemnation proceeding other than as
a taxpayer and as a member of the Commissioners Court, the
County Judge's interest in the case Is not sufficient to con-
stitute the disqualiflcatlon of the Judge to appoint commis-
sioners to assess damages or to preside at the trial. Gossett
v. State, 417 S.W.2d 730 (Tex.Civ.App. 1967, error ref.'m,
d the authorities therein cited Therefore, in answer to your
%rst question, you are advised that under the facts submitted,
It is our opinion that by reason of the provisions of Section 11,
Article V, Constitution of Texas , and the holding In Gossett v.
State, supra, the County Judge is not disqualified from presidi
-condemnation cases by reason of his appointment of special c:E-
missioners to assess damages in said cases.
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. .
Hon. Sam L. Gayle, Jr., page 3 (M-473)
The County Judge and County Court of Jackson County
have jurisdiction over matters of emlnent domain as provided
in Articles 1959, 1960 and Articles 3264-3271, Vernon's Civil
Statutes. Therefore, in answer to your second question, you
are advised that it is our opinion that in the absence of
legal disqualification, the County Judge as presiding officer
of the County Court, has a duty to preside In condemnation
cases in Jackson County.
We have found but one occasion on which the parties
to a suit may, by consent, appoint a proper person to try a
case. This occasion arises only when the regular Judge is
legally disqualified. It Is evident from the facts submitted
that the parties purported to appoint a special judge under
the authority of the provisions of Section 16, Article V,
Constitution of Texas, and Articles 1930, 1933 and Article 3266.
Since we have concluded that the County Judge is not
legally disqualified from presiding in condemnation cases in
Jackson County, it Is therefore our opinion that the purported
appointment of a special County Judge by consent of the parties
under the facts submitted was without legal authority and was
Invalid. However, under the facts submitted, a special County
Judge could have been selected under the provisions of Article
1934, Vernon's Civil Statutes. This Article reads as follows:
"If a county judge fails to appear at the
time appointed for holding the court, or should
he be absent during the term or unable or un-
willing to hold the court, a special county judge
may be elected in like manner as is provided for
the election of a special district judge. The
special county judge so elected shall have all
the authority of the county judge while in the
trial and disposition of any case pending In
said court during the absence, inability, or
such refusal of the county judge. Similar
elections may be held at any time during the
term, to supply the absences failure or in-
ability of the county, or any special judge,
to perform the duties of the office. When a
special county judge shall have been so elected,
the clerk shall enter upon the minutes of the
court, a record such as is providzd for In
like cases in the district court.
The manner of election of a special County Judge specified in
Article 1934 is provided for in Articles 1887-1893, Vernon's
- 2361-
Hon. Sam L. Gayle, Jr., Page 4 (M-473)
Civil Statutes.
The Commissioners Court of Jackson County would
have been authorized to compensate a special County Judge
elected under the statutory provisions, supra, by the au-
thority of Articles 1933 and 6821, Vernon's Civil Statutes.
However, there is no authority for the Commissioners Court
to order compensation of a special County Judge selected
by agreement of the parties to a case when the regular County
Judge is not disqualified by law to preside over condemnation
cases. The courts of Texas have repeatedly held that county
commissioners' courts may exercise only such authority as is
conferred upon them by the Constitution and statutes of this
State, either by express terms or by implication. Art. V,
Sec. 18, Constitution of Texas; Bland v. Orr, 90 Tex. 492,
39 S.W. 558 (1897); Roper v. Hall, 280 S W 289 Tex. Civ. App.
1925.
_ -. no writ): Landman v. State, 97 S.W:2d 264 Tex.Clv.App.
1936, error ref.)XZI- Paso County v. Elam, 106 S.W.2d 393
(Tex.Civ.App. 1937, no wr: ; V. Sterrett, 252 S.W.2d
766 (Tex.Civ.App. 1952, error ref. n.1r.e.j.
Consequently, in answer to your third question, it
Is our opinion that in view of the foregoing authorities the
Commissioners Court of Jackson County was not authorized to
order the expenditure of county funds to pay the appointee
who has presided in these cases by consent appointment of the
parties.
SUMMARY
Under the provisions of Section 11, Article
V, Constitution of Texas, and the holding in
Gossett v. State, -the County Judge, in
view of the facts =F?
su m tted, is not disqualified
from presiding at condemnation cases by reason
of his appointment of special commissioners to
assess damages in said cases.
The purported appointment of a special county
judge by consent of the parties under the facts
submitted was without legal authority and was in-
valid. However, under the facts submitted, a
special County Judge could have been selected
under the provisions of Article 1934, Vernon's
Civil Statutes.
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Hon. Sam L. Gayle, Jr., Page 5 (M-473)
The Commissioners Court of Jackson County was
not authorized to order the expenditure of county
funds to pay the special County Judge, who was
purportedly appointed by consent of the parties
to preside in condemnation cases in Jackson County.
Ver
eneral of Texas
Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION CONMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bill Craig
Lonny Zwiener
Bill Allen
Monroe Clayton
HAWTHORNE PHILLIPS
Executive Assistant
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant
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