Bradley v. State Ex Rel. White

been another and he had not convicted of

crime. argu-

Aсcordingly, hearing without oral pursuant Ap- Rule of

ment and to Texas 59.1,

pellate grant Procedure we review, petition

State’s reverse appeals, of the court of and af-

firm the trial court’s of delin-

quency and its assessment of a determi-

nate sentence. concurring BAKER

Justice filed a

opinion. BAKER, concurring.

Justice disagree analysis opin-

I in this I judgment.

ion but concur BRADLEY, Petitioner,

Scott

The STATE of the Relation Texas on WHITE, Respondent.

of Dale

No. 97-1135.

Supreme Court of Texas.

Argued Sept. April

Decided from the meet- Secretary to exclude

Town requested ing agenda an item Huntress proposed part to remove a and meeting; town minutes from another (3) Engineer prepare the Town caused Westlake, and then boundary map false to the Board of map the falsified presented part Aldermen as of an ordinance. Shannon, Greenhill, Bob E. Joe R. Scott 28, 1997, Board April the Westlake On Goins, Jr., Field, Austin, Eldridge K. E. sat a court to hear the of Aldermen as Morris, Jr., Jeffrey Wigder, James W. S. Bradley to decide charges against Dallas, for Petitioner. sufficient cause for his whether there was Diamond, Curry, Ann Tim Marshall M. Mayor’s During office. removal from Jr., Kelly, N. Searcy, Dee J. William War- alderman, trial, A1 Dudley and another ren, Schattman, Neely, Michael Barbara Oien, Bradley. Dudley testified Worth, Respondent. Fort Bradley provided that he had testified meeting of the request notice opinion Justice BAKER delivered the Bradley canceled. Oien testified allegedly Court, in which Chief Justice passed Board the ordinance that when the PHILLIPS, HECHT, Justice Justice issue, to it. At the map no was attached ENOCH, OWEN, Justice Justice aldermen, five end of the four of the HANKINSON, Justice O’NEILL Oien, Bradley found including Dudley and join. Justice GONZALES motion made guilty charges. On by Dudley, the Board Oien and seconded quo This is a warranto case. Scott Mayor of Bradley voted to remove as Board of Aider- Bradley asserts that the later, ap- the aldermen Days Westlake. Westlake, Texas men of the Town of did Bradley Mayor. as pointed Dale White Mayor him as lawfully remove judg- recognize aldermen’s 21.002(f) refused of the Texas Local Gov- grounds ment on pro- the removal ernment Code because applicable procedural procedure violated Evi- ceedings violated Tеxas Rule of Civil law, rules, state and his federal substantive Therefore, we agree. dence 605.1 We rights. and state constitutional judgment for appeals’ reverse the court of and render for Brad- the State Texas, on the State of May On ley. White, quo filed a warran- relation of Dale White, seeking a declaration that

to action I. BACKGROUND Mayor. The was the lawful Bradley, (1) had the aldermen alleged that: Bradley was elected State May Scott May- Westlake, Bradley from the lawfully munici- removed Mayor under Texas Local Government May reelected in 1996. or’s office pality. He was (2) 21.002(f); Dudley, a Code section Howard April On May- lawfully Dale White alderman, complaint appointed had filed Westlake (3) or; taken the oath of office White had alleging official miscon- against Bradley therefore, lawfully May Dud- on incompetency. Specifically, duct (4) Mayor; office as canceled held ley alleged into the unlawfully usurped and intruded by alderman meeting called special town lawful removal. since his public Mayor’s office and removed the Carroll Huntress filed a motion the The State meeting; directed notice of the сurrent Texas is identical to April Evidence 605 removal trial was held 1. Because the Evi- Evid. Texas Rules of Civil 605. See TexR. the former Rule of Evidence of Civil apply. Former Texas Rule dence APPLICABLE LAW allega- II. judgment asserting grounds petition. in its warranto tions A. Standard Motions of Review —Cross Judgment Summary Bradley filed cross-motion for sum- sum sides move for When both summary judg- mary judgment. In his grants mary and the trial court judgment following the Bradley alleged motion ment other, the the re one and denies motion (1) Texas Local Gov- affirmative defenses: both sides’ viewing court should review the Code section 21.002 violates ernment summary and deter judgment evidence separation powers Constitution’s presented. See Com questions mine all doctrine; (2) 21.002 is unconstitu- County Agan, v. Titus missioners Court of (3) tionally vague; Bradley’s removal trial 77, (Tex.1997); v. Jones 81 940 S.W.2d procedural his federal and state violated 898, (Tex.1988). Strauss, 900 745 S.W.2d (4) rights; a section 21.002 process render the reviewing The court should nature, penal and Brad- removal trial have trial court should judgment that the ley was denied his state constitutional 81; Agan, rendered. See S.W.2d (5) trial; jury aldermen right to a were Ins. Co. Hermann Members Mut. v. the Texas Constitution (Tex.1984). 325, If Hosp., 664 S.W.2d judges in the removal trial be- to sit and рarty brings a the case this Court they had a interest in the pecuniary cause appeals, we reverse the court we should (6) outcome; trial the removal violated judgment render the court Texas Rules Civil Evidence Agan, See appeals should rendered. 611b, and Texas Rules of Civil Proce- Garcia, 81; Tobin 940 S.W.2d at 527, (7) 18b, 571; dure (1958). 396, Tex. 400-01 316 S.W.2d removal trial violated the Texas Open a order sum granting When trial court’s (8) Act; Meetings the evidence at trial did mary specify does not judgment removal; support Bradley’s not upon, reviewing grounds relied judgment nullity removal became when a summary any must judgment affirm granted Bradley’s new board aldermen meri summary judgment grounds Doe, trial; for Star-Telegram, motion new torious. Inc. v. See (Tex.1995). do We judgment nullity became a when S.W.2d challenges consider constitutional appeal with the new filed bond board of dispose we of a on noncon when case aldermen. Transportation grounds. stitutional See The trial court denied the State’s motion (Tex. Moriel, Ins. Co. v. S.W.2d summary judgment granted Brad- ley’s summary judgment motion with- specifying upon out B. Removal Procedures summary judgment grounds it its based gov- The Texas Local Government Code appeals judgment. court оf held that in a office mayor’s erns conclusively proved had the State the ele- municipality. Tex. Loc. See quo ments of its warranto action. 956 mayor may § 21.002. A be Gov’t Code appeals at 745. The court of also S.W.2d miscon- removed from office official conclusively held duct, municipal violation of a intentional proved all essential elements of his defense drunkenness, ordinance, incompe- habitual quo warranto a matter of law nor had prescribed by municipal tency, or a cause he defeated least one element of thе Tex. Loc. Gov’t Code ordinance. See Accordingly, warranto claim. 21.002(c). State’s made complaint § When the court of reversed the trial mayor, complaint must against the municipal- rendered presented court’s to an alderman 21.002(f). § ity. State. Loc. Gov’t Code th(4 Cir.1925); complaint, Haynes The alderman then file the F.2d shall Missouri, mayor copy, with a serve set date for State S.W.2d case, (Mo.1996); notify trial of the Wilson Oklahoma Horse Comm’n, Racing 910 P.2d appear day. other aldermen to on (Okla.1996). 21.002(f). judge These cases hold that a Tex. A See Gov’t Code testifying as a witness violates due municipality’s of the rights by creating constitutionally intol mayor’s constitutes a court in the appearance partiality. erable trial with presiding one of the aldermen (“[I]t Brown, 843 F.2d at 851 is difficult to over the trial. See Loo. Gov’t Code 21.002(f). see how the neutral role of the court could If two-thirds of the members compromised, ‍‌​​‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​​‌​​‍be more or more blurred of the court who are at the trial present role, prosecutor’s with the than when the mayor guilty find the complaint’s state.”); judge serves as a witness for the charges charges and find that the are suf- (“The Tyler, danger 427 F.2d at 416 ... of office, ficient cause for from subjecting judge’s] to impartiality [the presiding court’s a judg- officer shall enter placing [party against doubt and of ment removing charged officer judge whom the at an unfair dis testifies] declaring the vacant. office See obvious.”); advantage very ... is see also 21.002(h). § Gov’t Code Murchison, In Re 349 75 proceedings Section 21.002 removal are (1955)(disapproving S.Ct. 99 L.Ed. 942 subject procedural governing rules present “spectacle” judge a trial procedural courts and to rules ing testimony which he must consider in courts, governing county district and to innocence). аdjudicating guilt or govern justice the extent courts. similarly Rule 605 is concerned with the 21.002(h); See Tex. Loc. Gov’t Code Hensarling appearance partiality. See (“All 523 Civ. State, v. 829 170 S.W.2d county govern district and courts shall also to Texas (Tex.Crim.App.1992)(referring can.”) courts, as they insofar 605, which is Rule of Criminal Evidence addition, the Texas Rules of Civil Evi- Evidence identical to Texas Rule Civil dence apply to section 21.002 trials. See noting purpose 605 and that the Rule’s 101(b) (“[Ejxeept oth- TexR. Evtd. Civ. impar preserve judge’s posture statute, erwise provided these rules jury); tiality parties before the and thе govern civil in all Texas courts WRIght Gold, courts.”). and Pro Federal Practice other than small-claims & (1990)(referring cedure: Evidence to Federal Rule of Evidence C. Texas Rule of Civil Evidence Advisory Comments of the Federal judge presiding “The at the trial Proposed on Rules indicate Committee testify not that trial as witness. No pur- that Federal Rule of Evidence 605 objection pre need be made order to impar- ports protect appearance point.” serve this Tex.R. Civ. Evid. tiality. The Committee describes Federal Texas Rule Civil Evidence 605 identi Rule of Evidence 605 аs: counterpart. cal to its federal Fed. rather surprisingly, incompetency,

R.Evid. 605. Not there are a broad rule of only as to reported incompetency few or state cases involv than rule [a of] federal matters, leaving the matter to ing Rule 605 violations. Most cases that material recogniz- judges testifying judge, do at the trial the discretion of the involve is the ing incompetency. decided no The choice they presiding over are are See, satisfactory process grounds. e.g.,Brown inability on due result of to evolve th(5 which arise when Lynaugh, questions v. 843 F.2d Cir. answers to Swenson, 1988); for the Tyler judge abandons the bench (8th States, Cir.1970); objections? Terrell v. witness stand. Who rules on United Star-Telegram, he compels him to Can meritorious. See Who answer? Brad- and ad- at 473. first consider impartially weight rule on We S.W.2d missibility testimony? his own Can ley’s nonconstitutional ef- impeached Moriel, he be or cross-examined S.W.2d at 13. See grounds. he, trial, fectively? in a avoid jury Can summary judgment Bradley’s One conferring approval seal of on one his lawfully re- grounds is he was he, in eyes jury? in the side Can war- the State’s moved from office as avoid an involvement de- bench Dud- alleges аction because Oien and ranto of impartiality? structive him while sat testified ley trial, violating over his advisory committee’s note. Fed.R.Evid. Evidence Rule Civfl Indeed, the few cases one of federal responded appeals court of that it reversible 605 held was argument by citing case law Rule 605 testify law judge’s error for trial clerk a com- that aldermen who assert holds be plaintiff about facts favorable against mayor plaint iden danger jury cause the would hearing. judging mayor’s judge law with the trial tify the clerk Richards, 229, 77 97 Tex. Riggins Atl. & Kennedy obvious. See Great th (1904). (5 The ‍‌​​‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​​‌​​‍court of S.W. Co., Pac. Tеa F.2d Cir. all that 21.002 allows then noted “potential The held that court in- general-law municipalities, it ren citizens of prejudice” great was so that aldermen, complaint file a inquiry prejudice cluding into actual to dered mayor. F.2d parties Kennedy, “fruitless.” See against Gov’t Code 21.002(f). However, at 598. court aldermens’ dual roles did not discuss the apply Rule 605 does not Bradley in against and judges witnesses judiciary, members of the to those but also the removal trial. performing judicial that conflict functions Gary with a witness’s role. See W. Dudley are mem- Although Oien and Dept. Louisiana Health and Human judicial judiciary, assumed bers th(5 Cir.) Resources, F.2d trial, roles con- in the removal which roles (applying prohibit deposition Rule 605 Sec- flicted with their roles witnesses. special com appointed master to ensure required 21.002 the aldermen to sit as tion with pliance protective family order in law over the removal “trial.” See a “court” case); Platte Resources Central Natural 21.002(f), (g), Gov’t Tex. Loc. Code Wyoming, Dist. v. State Neb. (h). along their Dudley, Oien 513 N.W.2d (applying aldermen, Bradley whether fellow decided ex holding properly 605 and that court de- complaint committed the acts had in testimony cluded of doctor who assisted so, whether acts war- scribed making process decision administrative removal. ranted State, adjudication); but see Williams Brad- Dudley against testified Ark.App. Oien 665 S.W.2d 299 that served as the basis testimony ley from trial court’s about facts (permitting bailiff, complaint adjudicated im and then a rebuttal for the called as witness com- credibility). Bradley guilty was peach a defense witness’s whether charges. testimony Their created plaint’s III. ANALYSIS that Rule seeks of bias appearance preju- potential prevent trial did nоt such Because the court Bradley inquiry into actual rendered specify upon ground which it dice Kennedy, Accord is fruitless. Bradley, prejudice we judgment for Therefore, need not at 598. we if one Bradley render analysis. harm do not conduct a summary judgment grounds Bradley’s The concurring opinion Bradley. asserts that sec- We do not any need to consider vagueness Bradley’s tion 21.002 is void for summary judgment the statute specify grounds. does not Accordingly, we reverse court and district court re- of appeals’ judgment and render concedes, moval trials. The concurrence Bradley on the quo State’s however, language of section Bradley warranto action. We declare that 21.002 and Texas Rule of Civil Procedure Mayor the lawful of the Town of West- 523 indicate that Texas Rule of Civil Evi- lake when the State filed its warranto dence 605 to removal trials. applies The action. that, nevertheless, suggests

concurrence Rule 605 should not apply because aider- concurring Justice filed a ABBOTT only people men be the familiar with opinion. facts form the basis for the com- plaint against mayor. ABBOTT, concurring. Justice Here, howevеr, there is no indication holds that Court Westlake Dudley’s that Oien and testimony was nec- Board of Aldermen Texas Rule violated essary to the removal proceedings. On Civil Evidence 605 when board members the contrary, the record reveals that it was judges Bradley’s who sat as not. himself admitted the sub- court also testified as witnesses complaint. stance the first He testified doing, sidesteps him. so the Court at the removal trial that he canceled the more fundamental flaw the removal: the meeting Huntress had called and removed posted public meeting.2 notice unconstitutionаlly thus denies Dudley’s concession rendered and due course of testimony he provided Bradley —that Const, XIV, 1;§ law. amend. with request notice of and a for the meet- Const, I, § I art. 19. Because would ing unnecessary. The aldermen voted — Bradley hold the statute used to remove Bradley that guilty canceling the I vagueness, void for concur the Court’s meeting removing notice of the meet- judgment. ing and that those actions alone were suffi- cient cause Accordingly, removal. testimony, solely Oien’s which dealt I falsified-map charge, was not neces- providing The statute for removal оf a

sary to the removal proceedings either. mayor municipality such a IV. CONCLUSION “a as Westlake states that try aldermen constitutes a court to Dudley, by We conclude that Oien and mayor,” determine the case testifying, violated Rule of Texas Civil Evi- subject proceeding and the removal “is Therefore, dence 605. the Board of Aider- trial in governing proceeding the rules a lawfully men did not remove Bradley as justice a court.” Loo. Mayor. Bradley conclusively Because ne- Code Gov’t (h). gated 21.002(g), Bradley an asserts that element the State’s war- proceeding рroceeding, ranto action—that the aldermen had law- removal is a civil for, justice fully Bradley provide removed and civil court rules section among things, change,1 venue em- appeals improperly 21.002—the court of juries,2 right appeal,3 paneling reversed the trial court’s Bradley he 2. testified that canceled the meet- P. 544. See Tex.R. Civ. ing and removed the notice because it was an illegally meeting. called 3. See Tex.R. P. 573. Civ.

1. See Tex.R. Civ. P. 528. which that when irreconcilable for new states right move trial.4 general argues that of Civil Proce- conflict ocсurs between further Rules special pro- apply through provision, and Evidence special statutory dure Civil Procedure which states gen- Rule of to the exception vision as an prevails governing contends, the district and “[a]ll that rules provision). As the State eral justice govern also county courts shall justice court rules application of all the courts, they applied, ex- insofar as lead to procedure would and rules of civil provided specifically where cept otherwise an “absurd result.” rules.” by law or these Civ. that the statute interpretatiоn applicable that contends these from its own flaws. urges the State suffers provide judges,5 pro- rules for recusal of ca- leaves it to the argument The State’s judges in cases in testifying hibit from are many of whom price of the aldermen — sit,6 they right and allow the full which procedure in the untrained rules impeachment cross-examination rules pick and choose which evidence—to witnesses.7 and to may ‍‌​​‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​​‌​​‍proceeding, to a removal apply responds graft that “to onto The State may apply rules choose which procedure all rules 21.002 of civil they “in conflict with” the structure are virtually would render the statute mean- subject to A proceedings. “would lead an absurd re- ingless” and know proceedings would not Following logic, sult.” the State’s exactly rules until the aider- apply justice court of concluded that that men decision make decision—a rules court should when are be made until the with” struc- “not conflict the intended effect, underway. the State already proceedings. ture S.W.2d asks the “absurd result” swap the Court 725, 738. Bradley’s contentions follows approaches Both are flawed. from its own the arbitrariness that follows upоn contention clear text founders of proposal. 21.002(h) Although the statute. constrained to The Court should not be proceeding subject states a removal presented by choose the lesser the evils Instead, un- parties. the statute’s directly several court rules contra- incongruities ambiguities avoidable requirements of section 21.002. For vene conclude, Bradley argues lead me to Bradley requested example, venue alternative, unconstitutionally that it is change jury trial that court vague. for, provide requests but both con- statute’s statement express flict with the II that aldermen consti- “[a] Constitution, Under the United States try the case tutes court to determine process that of due principle “[i]t a basic mayor.” Gov’t Code if its vagueness is void for an enactment provi- 21.002(g). specific This textual clearly defined. prohibitions precludes Bradley’s pro- sion of statute important val Vague laws offend several all rules and all posal City Rockford, Grayned, ues.” procedure. rules of civil See Gov’t 2294, 104, 108, 92 33 L.Ed.2d S.Ct. (codifying 311.026 the common-law Code (1972). materia, innocent They “may trap pari doctrine statutes (currently Tex.R. 7.See Tex.R. Civ. Evid. 607 4. See Civ. P. 567. Tex.R. 611(b) 607); (currently Evid. Evid. Tex.R. Civ. 5. See Tex.R. Civ. P. 18b. (b)). Tex.R. Evid. 611 (currently 6. Tex.R. Civ. Evid. Evid.

by not providing warning” fair really nite as to be no rule or standard at “impermissibly all”); delegate[ policy Lubbock, basic City ] Jones v. (5th policemen, 364, matters to judges, juries Cir.1984); Antiquities Texas Comm., for resolution on an ad hoc subjective (plurality S.W.2d 927-28 basis, with dangers the attendant of arbi striking decision down a civil statute as trary and discriminatory application.” unconstitutionally Id. vague). degree 108-09, 92 S.Ct. 2294. In clarity order to avoid vagueness standard re dangers, however, the Due quires, Process Clause according “varies requires that laws reasonably statute, сlear. As nature of the and the need for fair Supreme Court explained, process: protection notice or unequal enforce Jones, 373; ment.” 727 F.2d at see also

ensures power that state will be exer Village Estates v. The Flip cised on behalf of policies reflecting of Hoffman side, Estates, Inc., 489, 455 U.S. among authoritative choice competing Hoffman values, S.Ct. social L.Ed.2d 362 reduces the danger of ca not, (“[Vagueness] standards should price and discrimination in the adminis course, be laws, mechanically applied. The de tration of the enables individuals to gree of vagueness that the Constitution conform their require conduct to the law, tolerates —as well as the relative impor ments of permits meaningful tance of fair judicial notice and fair review. enforcement— depends part on the nature of the enact Roberts v. Jaycees, United States 468 U.S. ment.”); Comm., Antiquities 104 S.Ct. 82 L.Ed.2d 462 (plurality S.W.2d at stating decision (1984). “varying degrees specific stan concerns, Responding to these the Unit required dards” have been in testing Supreme ed States Court and this Court vagueness and legislative breadth of dele long applied principle that statu gations, “[depending upon the nature of tory language may vague not be so the power, agency, subject persons “of common intelligence must nec matter”). statute, In the case of this essarily guess at its meaning and differ as Court should consider that few actors de to its application.” Connolly General clarity serve more than elected officials Co., Constr. 269 U.S. 46 S.Ct. who can be removed from office at the (1926), 70 L.Ed. quoted in Texas An competing hands of other elected officials. tiquities County Comm. v. Dallas Com Dist., munity College 554 S.W.2d Ill (Tex.1977) (plurality opinion). issue, providеs The statute at Although the vagueness standard ap removal of a in a mu- plies frequently statutes, most to penal nicipality, is a civil statute. Meyer civil also be so that it Tunks, (Tex.1962) 360 S.W.2d 520-21 process. violates due See A.B. Small Co. (action county to remove a officer is civil in Co., 233, Sugar American 267 ‍‌​​‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​​‌​​‍U.S. Ref. nature). vagueness Our review must 239-40, (1925) 295, 45 S.Ct. 69 L.Ed. 589 apply therefore a more tolerant standard (explaining that the previous rationale of for civil statutes.8

vagueness cases is not limited to criminal cases because was not the The statute “[i]t fails even under that defer- penalty invalid, сriminal that was held but ential Antiquities standard. Texas Committee, the exaction obedience to a rule plurality or a pro- Court vague standard which was so and indefi- fessed that has been “[t]here called to our " Auth., 1245, Housing vague 8. See really 'so and indefinite as to be no Chavez th(5 1992) (A Cir. ‘substantially civil statute that does rule or at all’ standard or if it is Jones, implicate ”); the incomprehensible' (same). First Amendment is suffi 727 F.2d at 373 ciently process unclear to violate if it is so, ordered If a new trial be in 70? could elsewhere attention no case Texas or taking the newly aldermen by elected vаguely ... ... are more powers over presided who of the aldermen place than those expressed predictable or less original the trial? by phrase question.” permitted the at Antiquities Texas Comm. 554 S.W.2d Procedure Texas Rule Civil powers under this 927.9 The exercise district governing that rules which states hardly predictable. In the more justice also govern shall county courts mayor a proceeding a to remove context of courts, other co- an assortment of creates are directed in which his fellow aldermen 605, prohib- Do Evidence Rule nundrums. court, “subject the phrase a to to sit as witness, testifying from as a iting judge a or trial in a proceeding rules a 18b, Procedure and Texas Rule Civil justice glance seem may court” first judges, for recusal interested providing apply one is clear. When forced sitting as removal apply however, ambigui provision, inherent Evidently the Court believes judges? The confusion inescapable. ties become applies, and both Rule 605 Civil Procedure disregard for potential to apply would seem of these rules well rights that his describes —as petition of both the statute and Civil language ami- prеdicaments by as similar described However, Rule Procedure comprehensi lack of ci 10—illustrate this a reality that the opposed stand rules ble standard. try very aldermen who sit as court bring also be the ones who significant mayor may A number of civil rules for knowledge have charge, “may with substantial justice directly court either conflict presented,” or proceed- the statute’s scheme for of the evidence mayor. differences with the ings,11 provide guid- past no relevant Concord, Quinn City 108 N.H. ance to a board of aldermen.12 “Whether (1967); 233 A.2d see also has been Burke, 14, A. guess- and will to be a matter of Rutter v. 89 Vt. continue aldermen, mayors, (holding who acted as work for and even re- accuser, courts, leaving a and witness viewing ripe prosecutor, situation “the Con- subjective voting, from “resolution on an ad hoe and council, basis, dangers city arbi- its exclusive with attendant stitution of trier, diversity trary application.” jurisdiction discriminatory it, upon preclude idea Grayned, 408 92 S.Ct. 2294. duties imposed be made the test” of impartiality For example, party does successful sit in a by right a board member to provided recover costs as Civil Council, 72 proceeding); removal “court” State v. Common 559?13 Can the order 672, 242 N.W.2d provided new Rules 567- Wis.2d Civil keep (justices to phrase Antiquities Civ. P. Com- 12. See Tex.R. “buildings docket); (requisites ... and locations of mittee was Civ.P. civil Tex.R. courts); ... interest.” Id. historical writ or (dismissal plaintiff’s failure Civ. P. Paul Marian Hill de- 10. Amici Skelton and spe- (judgment for appear); P. TexR. Civ. pro- experiences scribe their property); Tex.R. Civ. cific articles of Points, Texas. ceedings in Parker and Seven property). (enforcing a argues appeals’ that the court of con- Skelton sepa- struction of statute violates 13. See Tex.R. Civ. P. guarantees. powers ration of and due ques- argues that the statute in Hill unconstitutionally Civ. P. 567-70. vague. 14. See Tex.R. tion is (relating to mo- 11. Tex.R. Civ. P. 527-32 changes); transfer and venue tions to (relating Civ. P. juries). 544-56

(“[T]he mere fact that proper [a member] council its in our bounds role divided oath ... government. stated under that there were The “constructions” urged grounds city [the to remove did clerk] not by parties would us require either to disqualify him from subsequently sitting as ignore specific words of statute or to an impartial adjudicator.”); McQuillin, own exceptions write our ad hoc into the Municipal As one recognized, statute. scholar has Law of CORPORATIONS (3rd (“[I]n 12.259.20, 1992) § at ed. is a adopting “there difference between remove, ‍‌​​‌​‌​‌​‌‌​​‌‌‌​‌‌​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌‌​‌​​​​‌​​‍proceeding to members of the rewriting construction saving legislá- council are not of the altogether.” tion Tribe, American Consti- they fact that were members of a commit- (2d 12-30, ed., at Law tutional tee to investigate and preferred afterwards latter, do We are invited to but charges; may they the fact I we should believe decline invitation. opinion formed an concerning the accused Virginia Bd. West State Educ. v. immaterial.”). Indeed, is regarded as the Barnette, 319 U.S. 63 S.Ct. aldermеn well be the only people (1943) (“It is, course, 87 L.Ed. 1628 familiar with the facts the re- underlying power our beyond to rewrite the State’s 12.259.25, proceeding. moval id. (Frankfurter, J., requirement....”) Cf dis- (“Particularly, objection an for bias Reese, senting); United States 92 U.S. against ... a member of a tribunal hearing (“To 23 L.Ed. 563 limit will not be sustained where to so would do this the manner now asked destroy only power tribunal with in the law, would be make a new not to enforce premises.”). Rare would be the occasion duty.”). one. of our part old This is no when a mayor truly could be tried Rewriting a with traps statute rife disinterested, unbiased, and al- uninformed power duty uncertainties is the of the dermen. Yet that is the fiction Legislature. controversy As the at hand Court upon parties. forces evinces, the governments decisions of local Ignoring probabilities apply- affect lives of citizens as pro- their ing these sets the stage for future foundly concretely any those of instance, enigmas. For the statute states level government. Sometimes a that “a majority consti- aldermen mayor’s pro- conduct necessitates removal tutes a Assuming, court.” Court as the Nevertheless, such ceedings. proceedings does, that Evidence 605 or Civil Pro- the local reverse citizens’ cedure if apply, Rule 18b what occurs as to to lead them. who is best least half must be recused Consequently, government our state owes or necessity because of bias duty but to his testify? provides guid- The statute no colleagues constituents ensure that ance—“no rule standard at all.”15 Nei- arbitrary such are neither nor ther does the Court. unfair, and never unconstitutional. This unwieldy carry statute fails to IV Legislature task. I urge out the Admittedly, courts “will often strain mend it soon. construe so legislation as to save it constitutional attack.” v. United Scales

States, 367 U.S. S.Ct. (1961). Nevertheless,

L.Ed.2d 782 even repairing

the Court assumed burden of statute, paradoxical

this would task

require Legislature’s such a revision of the

words that the Court would exceed the Jones, Chavez, 1249;

15. See F.2d at F.2d at

Case Details

Case Name: Bradley v. State Ex Rel. White

Court Name: Texas Supreme Court

Date Published: Apr 8, 1999

Citation: 990 S.W.2d 245

Docket Number: 97-1135

Court Abbreviation: Tex.