*1 INSURANCE GOVERNMENTSERVICES Relators, al., et UNDERWRITERS Judge, JONES, Herman
Honorable Respondent.
No. A-9590.
Supreme Court of Texas.
May 22, 1963.
Rehearing June Denied Smith, Spears, Perry
Franklin Rowan Antonio, Davis, Austin, & Heath San John Antonio, Langham, Peace and B. San J. appellant for relators. Gen., Carr, Waggoner Atty. Austin, Joe Dudley Long McCalla, R. D. Asst. Attys. Gen., respondent. for NORVELL, Justice. question sole in this involved 2168a, is whether or Article
proceeding Ann.Tex.Stat., provides Vernon’s law pending continuance a member of the application of suits it is is invalid because violative 1, of the Constitution of Ann.St., Texas Vernon’s into division of departments. No other con distinct three invalidity basis stitutional urged. is here contrary to the re- question was determined *2 56J spondent’s position Ferguson, cause, in Mora v. to such is a Member either Legislature, decided be S.W.2d branch of and will this of this in on or is 1947and in actual attendance on a Session party relators are entitled to the mandamus the same. any Where to they pray for. cause is a Member the Legislature, his affidavit need not corroborated.
The essential facts are these: affidavit, filing On the of such the court thirty shall continue the cause until company liquidation pro- An insurance (30) days adjournment after the of the ceedings pending is in District now Legislature and such affidavit shall be Texas, styled, County, Court of Travis proof necessity of the for such con- State Texas Services v. Government tinuance, and such continuance shall be Underwriters, Inc., Some Insurance et al. of right deemed one and shall not be October, 1962, Franklin time in Honorable charged against party receiving Spears, attorney an at law member of subsequent any such continuance Senate, employed counsel State as application for here- continuance. is by one more of in said or the defendants by declared to be the intention of the cause. The defendants in the case men- Legislature provisions this tioned now are the relators before mandatory Section shall be deemed Court. discretionary.” The defendants in the district court case wording
filed a motion for the statute makes clear continuance based the Legislative intent grounds inability various to that the court in which such com- a statutory plete motion is shall taking depositions filed no dis- of the have cretion liquidator grant to or refuse the motion. It is statutory because of illness and that, only perti- expressly mandatory stated “it shall be ground like. The is which here, however, that the court portion nent is that continue cause” hereby that styled motion “It declared to be inten- which “Alternative Motion Legislature provisions tion of that Spears for Continuance” wherein Senator mandatory of this pleading a sworn Section shall be deemed states he is mem- discretionary.” and not presently ber of State which Senate prays in session the cause be Jones, respond- The Honorable Herman continued in accordance with here, ent the judge court of Article 2168a. This “Alternative Motion liquidation pend- which proceedings originally for Continuance” was filed on ing, overruled the motion for continuance April grounds and the therein set forth mandatory and held that the nature again urged were a pleading filed on statute rendered the same unconstitutional April 25, 1963. of the Texas Constitu- to Article 2168a reads as tion follows: division powers provides that: suits, criminal, “In all either civil or probate, in matters of pending or Government any of this at any court time State of Texas shall be divided thirty days departments, into (30) within of a when three distinct date each of Session, separate to be or shall confided to a body any magistracy, time the at in Ses- wit: Those one; sion, Legislative it shall be which are those another, court continue such cause if it shall which are Executive to affidavit, court, by appear another; those which are Judicial party applying person, for or any persons, such contin- and no collection uance, any attorney any party departments, one of these peremptory writ properly at- to this Court
shall exercise others, except directing mandamus tached either of pend- cause per- continuing an expressly enter order the instances herein *3 the ing in court in accordance his mitted.” in Mora v. practices holdings and outlined rests The order of the district court supra. Ferguson, squarely upon proposition por- the that the con- Express provisions that similar to tion of the statute undertakes in tained the Texas Constitution deprive a of discretion in district court all the division of granting regardless a continuance of wheth- many in Un- found constitutions. state attorney- presence in er fact the the of counsel, doubtedly, pointed by such as out legislator is a trial of the essential to fair con- provision implicit a in all is written judicial cause to an amounts invasion United the patterned stitutions after that of by Legislature realm the and hence comes However, problem of the States America. proscription under the constitutional em- judicial of is determining that which II, bodied in Article 1 the of Constitu- § difficult often legislative that which is is tion.1 No other basis for the refusal of circum- varying of factual statement under the continuance is forth in the order set upon depend may stances. Classification judge urged trial and it is the particular the and definitions nomenclature Attorney representing General iswho here learning employed in the of with which field respondent the granting of a To scientist political is a one concerned. person being tinuance would in any result power as that regards the legislative who deprived remedy by of a of due course of those rules which determines law, anyone deprived or that would of be by govern- supported conduct will be equal protection contrary laws sanctions, in a court mental the action of the of the Fourteenth Amend- Legislature passed by a declaring a law Constitution of United appear to might to be null and ineffective I, States or 13 Article and 19 of the §§ As legislative power. clear be a exercise Constitution; Texas or that constitu- Mc- in Goode v. mentioned this Court II, tional provision 1 other than Article § power Heirs, Queen’s would prevent Article 2168a from and hold to set aside judicial branch fully operative par- under the facts of this has naught an act branch ticular case. anomaly by foreigners as an regarded been Upon (p. grant at that dangerous refusal to one and a somewhat Jones’ Attorney statutory continuance, applied Yet, pointed relators out 257). by Judge 1. The order in interest entered re Jones be continued trial should judicial duty elementary justice cited that “is of the court is an II, 2168a, V.A.C.S., must, I finds that un Article Section Article Texas, postpone dertakes to make the of the State of court’s the Constitution judicial filing upon ment of case branch exercised be attorney government; of an as Arti- affidavit that an in that insofar such case member of to divest undertakes 2168a cle session, when it that is in re to determine all discretion gardless necessary pres administration whether fact be shall attorney necessary postponement justice, be al- ence of such for a for a had; lowed, fair violates Article trial to be that the in tent of Article 2168a that no of the Constitution discretion I Section therefore, upon is, filing be unconstitu- vested in the Court Texas extent; affidavit; in view of such such an that that to that defendants tional may unconstitutionality, fairly exer- this Court trial of this will determining properly represented whether its other counsel discretion cise necessity presence for con- motion without alternative for the defendants’ granted.” attorney-legislator case; should in this tinuance of whether or not the determination Hamilton, brief, procedure General Alexander S.W. Insofar as clearly- concerned, (No. 78), Papers ju- the Federalist the 1891 amendment to the Madison, anticipated Marbury vesting dicial Cranch article of the Constitution Supreme power L.Ed. rule-making when he asserted Court with expressly branch must neces- recognizes power sarily possess those Legislature. declare subordinate to Ar- that of the V, contrary Constitution, acts invalid the Con- ticle which are 25 of the reads as judiciary stitution theory follows: disregard
must follow fundamental law and
pow-
Court shall have
*4
contrary
non-fundamental
which
law
er to
and
pro-
make
establish rules of
thereto.
not
cedure
inconsistent with the laws
the State
government
for the
of said
Proceedings in
involved
which a court is
court and the other
of this
necessarily
judicial
are not
in
courts
classified as
expedite
to
dispatch
business
character
under
and all circumstances.
therein.”
recognized by
This is
terms of the Con-
stitution itself in various
For
instances.
also,
See
Golden
112
Odiorne,
v.
Tex.
example,
V,
Article
of the Constitu-
8§
544,
tion vests the District jurisdiction In De of contested elections. The right adopt Legislature Webb, 108, Shazo v. 131 Tex. 113 S.W. rules of evidence 519, said, jurisdiction 2d it was “The judicial ques- proceedings has never been and ferred the district.courts to hear 3713-3737, inch, tioned. Articles Vernon’s legislative determine ‘contested elections’ Legislature Ann.Tex.Stat. The creates * * * in its * * * words nature. In other district courts and sets terms for power jurisdiction to hear and See, Apportionment courts. re- Statute and determine a action contested election lating courts, 199, to district Article and power jurisdiction and to exercise Article 1919 providing for continuous * * * function, and terms. examples Numerous other leg- also, Lane, a civil suit.” See Williamson v. islative procedures control of could 335, 52 Tex. Laughlin, and Gonzales v. given; and when we examine matter 236, Tex.Civ.App., 256 his- S.W.2d no writ specifically here, which is find involved we tory. controls granting
of continuances in pro- criminal cases determining visions which whether or not the have been in codified power by Procedure, exercise of a Code gov one branch of of Criminal Articles 538 cases, 551 ernment is an unauthorized provisions invasion of inclusive. civil jurisdiction branch, governing or we realm another matters were also enacted relationship Legislature prior must consider the of the various 1939 Act departments repealed parts as set forth which all laws or of laws Constitution, practice governing procedure defined in the Texas for that permitted can relinquish which is the Constitution civil actions in order full power power unconstitutional. The rule-making not be authority plenary 1939, legislature of a state p. 201, such suits. Acts 46th Leg., only express 1731a, its extent is limited Vernon’s Article Ann.Tex.Stat. See 252, implied restrictions adopt thereon contained Rules 251 and which also in rule necessarily arising in or from Constitu form the of Articles 2167 and Brownson, tion itself. State v. 94 Tex. 2168 of the 1925 Revised Statutes. pro- In connection -with the non’s Ann.Tex.Stat. Denbow v. Standard
2. mulgate procedure, see, Company, rules of Acts Insurance Accident 143 1939, Leg., p. 201, 1731a, 455, 46th Art. Ver- S.W.2d 450, made.” 12 A Continuances prescribed rule Am.Jur. discre deprives judge of all a trial § refusing tion in a continuance granting or pointed out that then juris development is not a novel “an long line decisions Oklahoma 1 of prudence of this State. § application is addressed for a continuance iden is practically Constitution of court,” to the sole discretion of trial 1 of tical in wording with Article holding followed that a statute with a v. Constitution, Prewitt present and in provides for a continu- Lipscomb 283, Mr. Everett, 10 Tex. Justice places beyond ance which the- matter Bissell, Tex. Hipp on judge discretion of the trial violates Hutchett, said: Hipp Oklahoma provision prescribes shall what governmental powers. the division of second grounds for first and sufficient It seems hold- that the difference continuance, sub- to a but is silent as ing of the Booze Oklahoma Court in the continue, and sequent application to *5 case and in the holding of this Court that, court it has this been decided underlying Mora case an di- stems from complied if the are terms statute of the vergence legislative of view as to applica- and second with on the first subject over the of from continuances tion, no discre- the court can exercise standpoint. the Okla- constitutional Under be tionary must power; that it homa Constitution as construed granted.” state, Appeals Criminal Court that of of also, Cole, v. See Cleveland the matter of continuance lies within State, Lillard v. 17 Tex.Cr.R. discretion of an officer sole of department. this in Mora Court well-pre- When Attorney The in a General pre- Ferguson upheld legislatively au- general pared a number of brief cites continuance, mandatory neces- scribed it sepa- of thorities to doctrine sarily held that the matter of continuance specially powers and calls ration of solely did not rest within of discretion this cases decided since attention two to is a judge. the trial There conflict clear Ferguson. in Mora v. Court’s decision principle of between and Mora Booze (1957), are McConnell These seemingly is recognized cases this by the 302 S.W.2d Ark. Attorney for argues he that General Arkansas, of and Booze v. Court pass upon Mora this did not Okl.Cr., County (1961) of Lincoln mandatory contention continuance 589, by the Oklahoma Criminal P.2d violative 1 of Appeals. Oklahoma The the Constitution. McConnell quotes from the follows sup- persuasive authority decision and is are agree argu We unable to with the position. port respondent’s The presented. stating In our reasons approval following quotes therein disagreement, repeating some what was Jurisprudence, American from statement speak in Mora unavoidable. is We viz: system separation pow American principle running and checks and balances. ers These fundamental contradictory seemingly subject of continuances terms and it should throughout the recognized all a that three branches of granting or refusal of be is that the interdep are to some extent government in the discretion of the tinuance rests mandatory application is A continuance court endent.3 maintain, ment, separation Story Daw, that that on Constitutional public liberty, indispensable we are said: speak separation a maxim in limited sense. understand this “But we when they departments govern- affirm, great must is not meant It the three legislative undoubtedly in independent departments, Leg- enactment will operations terfere somewhat with the .required islature is to deal with the judicial department On government. most rights rights sacred of human — requires the other hand directly life, when court affect the lib- up legislator-attorney erty, attendance property of the citizen. session, on it while the is in body, therefore, The members proc some interference give uninterrupted with the must constant and statutory ess necessarily place. takes attention to their duties as such while right un or privilege legislator of the it is in session lest there ad- be either doubtedly subject abuse, so is vertently but inadvertently legisla- bad primarily discretion judge.4 put tion repealed, over or good laws responsibility respective the effect branches of which necessarily would work, their time, to curb abuses within irreparable for the particular continuing spheres. damage While a propo- to the state. But these responsibility may failure to in meet this sitions are well understood and their dicate a change, need conceded, soundness will be since it may circumstance that a be abused possibly cannot be doubted that arguing valid basis for members Legislature, particular- power is ly non-existent. may members as belong legal profession engaged actively upholding continuance practice thereof, should be re- quoted approval *6 Court Mora by lieved the law from concerning Superior the following from Bottoms themselves with extraneous matters or Court, Cal.App. 764, 256 P. 424: interests not pertaining legis- to their lative duties they while are in attend- purpose the provision ance on sessions of the and Section 1054 of Code Civil Pro- the actually prosecuting their duties as [providing cedure for a hand, On such. the other sugges- the is obvious. will read- It continuance] may ventured, tion significant in the ily be conceded that there no ac- present connection, practicing that a tivity connected with and essential lawyer deals awith science involving preservation and the maintenance learning, most abstruse re- in its importance greater fabric social procedural medial and as as its well functioning leg- than that of the of the branch, substantive and in conserving department islative of a state. In ex- or preserving, protecting or or defend- ercising and administering that branch ing rights of his clients when such sovereign powers of the of a state that rights questioned judicial in the appropriated by people, in to it tribunals, the demand for his undivided ours, such as government attention those causes is as neces- sovereign into are divided different, distinct, assigned sary imperative three as is the demand or wholly entirely kept separate 1858), (3rd I, p. United States ed. Vol. distinct, and have no common link of con- dependence, upon nection other, one slightest degree. Sweeney Jarvis, in the The true In 1. c. meaning is, power one whole Mr. Justice Wheeler referred to the dic- departments “arbitrary of these should not be ex- tum of Lord Camden wherein judicial hands, pos- ercised the same discretion” in a officer was char- tyrants: the whole sesses either acterized as always unknown; law of “the departments; and that other such exercise different in different principles men; casual; depending upon whole would subvert constitu- ” * * * Story, tion, temper, passion.” of a free constitution. on Commentaries the Constitution of the judicial him attention while he branch of the for like ordinary prin- different performing the duties of from which engaged consideration, ciples fairness, public Legislature.” member welfare, public estoppel waiver substance, argument of Cali- In would circum- dictate the same mandatory contin- fornia is that the stances, then article to that extent such prevent rather than tend to uance would constitutes an unwarranted invasion legisla- conflicts bring about between branch of duties govern- departments of judicial tive and separate function of and distinct opin- California referring ment. to the judicial government.” branch of Mora, this ion in it clear that seems Brew- opinion, In the Mora Mr. Justice problem di- considering Judge ster writing this Court stated powers and neces- vision of position as Ferguson’s follows: the consti- sarily must had mind have provision urged invalidate here tutional respondent if Art. urges “Then 2168a, statute. impose supra, undertakes govern- branch we con- strengthened when This view procedure different rule of respond- urged sider the contentions ordinary from the rule of waiver together with what ent in the Mora case estoppel, an unwarranted it constitutes disposing of the was said invasion contrary these contentions. asserts, judiciary. functions of the He petition mandamus, the to the answer also, question is statute in un- Bryce Ferguson, one of Honorable constitutional in undertakes to lawyers bench occupying district abler privileges and immunities add (1947), asserted: at time given Legislature by members (1) that insofar Article 2168a5 express provision.” immunity up any right, to “set seeks abundantly seems clear that *7 leg- , privilege which members of the question an Ferguson raised the unlaw- of be entitled the islature would by of the ful invasion the realm case, wholly apart the from existence Legislature, e., i. that a violation the of statute, such the same is to such of pow- principle of governmental of division extent unconstitutional as an at- reason- ers had occurred. This Court was part tempt legislature of on the ably stating Judge Ferguson’s accurate in privileges, immunities and add its although the statement thereof in position ” * * * and, opinion was in somewhat briefer form respondent’s reply (2) that “to the that Article forth in extent than set impose upon petition 2168a undertakes to for mandamus. In our any principle pro- scope judiciary opinion rule or the Mora decision holding concerning the narrow governing cedure cannot be restricted to 1929, (Acts 5. Act 41st Rules of Oivil Procedure Under the 1929 Texas p. 17) Leg., Supreme continuance Court as authorized the 1939 because Making Act, was dis attendance Rule necessary cretionary into Rule 254 with in that it was were written changes applicant presence and the statute show that minor textual 2168a) attorney-legislator necessary (Art. it related to civil was insofar as repealed. 1941, proper In listed a fair and trial the case. actions was mandatory 462, State, re-enacted in v. 114 the statute was Burkhart Tex.Cr.R. Leg. 69.) 238; 1941, p. State, (Acts Davis v. 47th 120 Tex. form. 26 S.W.2d placed 805; 330, 49 v. was amended and S.W.2d Burton the statute Cr.R. State, 1949 1949, 768; (Acts 238, present form 51st 129 Tex.Cr.R. 86 S.W.2d in its Ferguson, 498, Leg. p. 1111). v. 199 Mora adoption 759. With the S.W.2d es- attorney ing Spears’ application not that Mora and his for a stat- were Senator utory topped benefits of claiming solely from continuance based quo- 1, mandatory statute. The continuance Section the Texas Con- forth stitution and from the California case set record in tation this Court developed es- support not not the Mora does deal so as other un- toppel position an allegedly nor does it discuss constitutional or contention. The expansion privileges rehearing motion for warranted overruled. Leg- given immunities to members express provision.
islature separate departments .of discusses position attor-
government and the
ney-legislator with reference thereto. Ferguson in Mora
position Judge taken
was as that was sustained same in Booze the Oklahoma court v. INTERNATIONAL BANKERS LIFE IN Mora, COMPANY, County. how- Petitioner, SURANCE Court Lincoln ever, Ferguson’s contention was de- Judge adversely In view is- cided to him. Sterling Beasley, C. HOLLOWAY and D. D. opin- sues in the Mora and the raised Respondents. issues, disposing ion of this No. A-8917. holding we must conclude continuance Texas. statute did violate Article 1 of April 24, 1963. See, State, King Constitution. Rehearing Denied June Cr.R.R. S.W.2d A.L.R.2d anticipate respondent Dis-
We present
trict will vacate order
setting case of State of Texas v. Gov-
ernment Insurance Services Underwriters grant statutory trial
et al. for Only therein. event of a
tinuance take action as
failure to indicated in
opinion actually will mandamus issue. conditionally granted.
Mandamus FOR
MOTION REHEARING original opinion Court’s ade
This disposes
quately the issues raised petition for mandamus the answer was stated in the
thereto. involving the
questions Fourteenth Amend Constitution of the United I, Sections 13 and
States Constitution were not the Texas raised. effectively
They despite raised now Attorney attempt expand General’s position original in his motion for re
hearing. deny- The order of Jones