State Ex Rel. Dishman v. Gary

565 general morals, any way safety, public or to the convenience 1, anyone provisions who exhibits welfare. Under Section regu- picture play place or at a other than a fixed and motion pay larly picture tax. must An- established motion theater picture person play a similar other who the same exhibits adjoining building escapes audience in an of the same construction payment merely regularly of the taxes he motion because shows building. pictures plain in that The discrimination is too admit argument, agree and we with the trial court that Section 1 of Article 21.02 unconstitutional. H. Rouw v. Texas See Co. Commission, 231; Citrus 151 Texas 247 San Antonio Lafferty, Retail Grocers v. 297 S.W. 2d 813. judgment The of the trial court is affirmed.

Opinion delivered June George Relators Texas, ex al, rel et Dishman Respondents Gary, Judge, al, Honorable Gordon D. et July 2, No. A-9088. Decided S.W. 2d SMITH dissents.

ASSOCIATE JUSTICE General, Austin, Wilson, Attorney Lindsey, Will C. Crim- W. Attorney, County, Walley, Jr., inal District Jefferson W. G. Beau- mont, for relators. Quintin Keith, Mehaffey, Weber, & McNicholas Keith of the Gilbert n Beaumont, respondents. Adams, T.

firm. ORIGINAL MANDAMUS JUSTICE R. NORVELL delivered ASSOCIATE JAMES opinion of the Court. grows existing judicial of a cause out stalemate This conflicting Texas, brought County, by which was about Jefferson presiding by judges the 60th over the courts of orders issued legal juris- judicial question A districts. as to the and the 136th nothing is is in the record diction of courts involved there good integrity faith of the which reflects before us attorneys judges district involved. or the by specific requested relief of Texas is writ State The Gary, requiring judge D. of mandamus Honorable Gordon Court, expunge District from the record a certain of the 60th 6, order, void, 1962, entered said to be him on June brought originally purports reinstate an ouster suit Meyer, County, H. Charles Jefferson State seq., 5970 et Ann. Texas. Articles Vernon’s Texas Stats. sought injunctive ancillary of the also vacation orders con- original jurisdiction decree June 6. Our in- tained in said 1733, provisions of Article under Vernon’s Ann. Civ. voked Ferguson, See, 2d 272. Stats. giving rise to this case stated, circumstances Briefly these: are 27, 1961, suit State was an ouster on behalf March

On against Meyer docketed 60th filed cause; B-77,303. proceedings were had in this Various Cause No. by Meyer, petition filed amended and was cross-action depositions. attempts examined made to take These need May 1962, the discontinue in detail on State moved to because right prejudice to the of the defendant the cause “without on his counterclaim”. This motion was contested heard but the Court sustained the motion and ordered defendant suit. dismissal ouster May pending at a time On when no ouster suit was Court, through Texas, in the 60th District the W. G. Jr., Walley, acting Attorney the Criminal District of Jefferson County, filed an ouster suit in the 136th District Court Jef against County Meyer.1 ferson This suit was docketed as Cause D-79,254. No. After petition, citation was ordered issued on the requesting a Article motion Meyer Sheriff be sus pended from office was also filed. Article 5982. May 31, 1962, Connally McKay,2 On the Honorable who was presiding judge Court, as of the 136th District entered an order suspending temporarily Meyer from the office of Sheriff of Jef County appointing ferson and discharge Richard E. Culbertson to being the duties of such office “for the during time and pendency of the suit”. This order requirements recited that citation, of Article 5979 as to complied etc. had been with. Cul duly acting qualified bertson by complying sheriff with the provisions of Article 5982. May 31, 1962, Also on thirty and about minutes after the Judge McKay’s suspending rendition order Meyer Sheriff office, from Gary Honorable Gordon D. issued temporary restraining enjoining restraining order Richard E. Culbertson acting purporting from or to act as Sheriff of County Jefferson interfering any way or from with Meyer Charles H. conduct of the office of Sheriff of County. Jefferson This re- straining order remained force until A.M., June 1 at 10 when Subsequent filing suit, Lindsey 1. of this appointed C.W. Crim- Attorney County joined inal District of Jefferson and has proceedings. in these 52-160b, Article Vernon’s Ann. C.C.P. Regular District, sitting 114th Judicial the Honorable Clayton, Judge R. of the 136th Harold Judicial District who had recused himself. 6, 1962, Judge Gary- until June at which time

it was continued temporary restraining extended the terms of order “until order of further this Court”. The Culbertson result bring judicial impasse. Meyer this order was about violating cannot without act sheriff order of 136th suspending Mr. District him from office. Culbertson can- violating injunction act as sheriff without of the 60th County, population Judicial District. In effect with Jefferson 245,659, is left without law enforcement officer. chief restraining 6, 1962, as The of June well as orders order mentioned, B-77,303 were all entered in Cause No. heretofore Court, by on the of the 60th District Court. The its order docket sought this dismissed ouster of June to reinstate suit over the directing Attorney by protest District Criminal B-77,303 petition amended and suit said Cause No. State’s hereby “be the same is reinstated on Defendant’s Amended Motion therefor”. provision purporting

This to reinstate the cause reassert subject cause of the suit basic over the matter is the relating Culbertson, injunctive to Mr. orders here involved. restraining decree, provisions as well as those June State, i.e., parties representing the the relators and the Criminal taking any Attorney action in cause further the any Court, D-79-254, pending other in the 136th District No. ancillary dependent appellate excepting an are to and court” reinstating B-77,303. said If reinstate- Cause No. order falls, ancillary it. the orders fall with ment controlling question presented is the case the As view we having relinquished jurisdiction not a District Court whether or may jurisdic- statutory thereafter reassert a ouster cause over cause, jurisdiction so as to defeat the over such dismissed tion jurisdiction acquired court which of the co-ordinate of another pending a was no ouster on at time when there suit ouster suit the first mentioned. the docket of 5, Title and 100 24 of Texas Constitution Article Sec. inclusive, Statutes, (Articles 5997, Ver Revised 5691 Civil public Stats.) certain relate to removal of Ann. Texas non’s 5987, inclusive, provide district Articles 5970 officers. designated a sheriff well as other officers judge remove as govern prescribe procedures that such suits. office “belongs State, in its remedy of ouster is one which sovereign protect people capacity, to the interests of the as

569 ousting guard public incumbents whole and welfare public”. wrongfully injury office who hold to the State L.R.A., 7, 345, People, Railroad 44 P. 22 Commission v. Colo. attorney proper proceeding In is a N.S. 810. representative such the district control of the virtue of his office has prosecution 5, 21, of the cause. Article Constitution Sec. Texas; Staples State, King, 61, of 639; ex rel. 112 Texas S.W. Mason, Reeves v. State ex rel. 114 Texas 267 S.W. 666; Ennis, App., ex rel. Hancock v. Texas Civ. 195 S.W. statute, Except provided by 2d ref. n.r.e. where otherwise governing practice rules of Article other civil cases control. procedures clearly Under the set inferable from forth and pertinent statutory provisions, constitutional and as as well express wording Procedure, under the Rules of the Texas Civil appears attorney, leading that the district counsel for the State, empowered B-77,303 to discontinue No. on the Cause docket of the Ennis, 60th District Court. State rel. Hancock v. ex App., n.r.e.; parte Norton, Civ. ref. Ex 2d 1041.

In mentioned, Norton, Norton’s case plaintiff, above J. F. took a nonsuit under Article 2182 from which Rule 164 taken change verbiage. with no The court refused to allow the nonsuit plaintiff until pay up alimony. should some back The case came corpus contending to this Court habeas with Norton that pay contempt the order of entered as a result refusal alimony agreed

such back was void. This Court with this right contention and held that to take a nonsuit is absolute unqualified when a motion jury therefor is made before the retired, case, jury has judge or before the has announced non-jury his decision in a case. This further said: granted legal rights “Had the court relator his and dis- open nonsuit, missed the divorce suit when he court took jurisdiction proceedings he would have lost of the divorce such, power and would have had no enter a contempt alimony, and, pay order for failure of relator to had right absolutely given the relator been accorded the which was statute, absolutely him under there would have no by way payment alimony to enforce the of the back claimed Wright Wright, the wife. Texas Inasmuch v. 6 relator right action, had the to dismiss his divorce and thus end the proceedings, opinion divorce we are of the that the trial court rights prejudice by refusing could not his to allow the nonsuit and dismiss the suit for divorce.”

570 contempt subsequent

The order of which was rendered discharged. motion for nonsuit was held void and Norton was question Norton’s case would seem conclusive of the before us unless a valid distinction can made that case and be between upon B-77,303 one based the circumstance that in No. Cause (60th Court), Meyer a action and the had filed cross order permitting the to nonsuit was entered “without prejudice right upon to the defendant to be heard counterclaim”.

Seemingly statutory prosecution in a of a cross action cited, ouster procedure suit precedent. is has without Counsel found, reported we have action in which a cross case brought was considered in under connection with an ouster suit the Texas Constitution the nature and statutes. we consider When which, remedy remedy prosecuted pointed out, is above imagine sovereign the State in capacity, it is difficult to a set properly of circumstances under which action would a cross except perhaps attorney lie3 where it that the district was shown clearly had peatedly abused the discretion in him law and re vested filed and dismissed suits a defendant for ouster purpose applicable an harassment as to make the rule so nounced University Morris, this Court in of Texas v. thing 426. It is one the discretion of attack thing attorney taking nonsuit, the district in and another one appears when repeated taken as to nonsuits have been substantially upon suits based same facts. It further state of remedy filing repeated seems that the in case of the vexatious taking preventing lawsuits does not lie in of a nonsuit or the reinstating preventing of dismissed rather causes but in filing provide of another suit. The ouster statutes a safe guard against repeated filing of vexatious suits in that Article provides filed, applica petition an an after ouster judge tion shall for citation shall made to the district who either order In the the issuance of citation or refuse to do so. “peti taken, event the latter action is that the the statute directs remedy tion shall an exclusive lies with be dismissed.” Whether permitting upon judge attack the discretion of the district i.e., suit, has citation to one that issue vexatious Clayton State, Anderson, 122 Texas 3. While the factual & Co. situation us, wholly it should 62 S.W. 2d 107 is different from that now before State, having pointed jurisdiction exception invoked the out that an to the' rule that cause, may answer on a civil be held to a court to determine sovereignty” recognized “exemptions in- are cross action is where inherent Refining Co., See, 2d 707. volved. State v. Humble Oil &

571 repeatedly filed, injunction or an could issue in another suit question presented by is a which is not record us. before ordinarily

The nature of the ouster suit it admits is such that statutory of no cross provision action. There is a cross ac for proceeding nature, quasi tion. The is criminal State v. Reyna, 404, 832, 160 Texas seem 333 it would only presented that issue would be whether or not guilty charges brought against defendant were him. This charge. issue jury general is to be determined under a The cross action here involved af consists little more than the firmative pro assertion of a defense under Article 5986 which vides that “No officer in this removed State shall be from office any prior act he have committed to his election to office.” State, 296, 666; Reeves Laughlin, 114 Texas In re 267 S.W. 183, 859, 265 S.W. 2d 348 U.S. Ct. S. opinion 99 L. ed. 677. In action, our the assertion of this cross thereto,4 operate deprive amendment could not attorney district statutory of his control of the ouster suit nor serve as a basis for the reinstatement of a suit in which he had voluntary taken a nonsuit. respondent Meyer relating

The has cited a number of cases right public to the of a equity enjoin officer to sue in inter- interfering meddlers from with his conduct of his office. In sought none of these enjoin cases was it attorney a district bringing Meyer’s from an ouster suit and if cross action be con- independent purpose, sidered as an suit for that the authorities support cited position. him do not Harnett, In ap- Caruthers v.

pellant, county County, brought treasurer of Presidio an action alleging defendants, county inter alia that members of the com- court, pay missioners’ had issued bonds to for the erection of a jail seat, county courthouse and at the new and that some of presented registration. these had bonds to him for He had register alleged refused to the bonds for stated reasons that he feared that the commissioners’ court would seek to remove register him from office because of his refusal the bonds. prayer injunction was for an restrain the commissioners interfering appellant’s with office or official records. injunction, finding The trial court appellees denied the had undisputed only It the two ouster suits mentioned are the ones attorney against Meyer. appears that have been filed the district It therefore allegation repeated filings that no and dismissal can be made. interfering appellant’s public no intention of with office or the charge. appeal. records in his This was affirmed on Although respondent general proposi- cites this case for the against anyone public injunction may tion a official an seek attempting him, following language opinion to remove the clearly distinguishes present the case from the situation: power to

“There can be no doubt that a district court has illegal injunction issue the an to restrain the seizure use of or papers office; pertaining any public books and it would to and only right, duty, any public seem not the but also the officer records, books, papers intrusted with the and of his office affecting right, public welfare, protect own well as the illegal necessary, use; this, them an and from to do if seizure interposition he equity. ask the a court The relief sought brings rule, by appellant him within this in so far enjoined seizing as he asks that the defendants and be carrying away records, books, papers pertaining and (Italics county supplied.) his office of treasurer.” Callaghan The Civil three cases Antonio San Court Tobin, 319; Callaghan Appeals (Callaghan McGown, v. v. 90 S.W. Callaghan 328; Irvin, 335, ref. in 90 S.W. all and 90 S.W. wr. v. language cases) respondents. are likewise of little This value to describing typical from the case the nature of the suit is Tobin they point of all are here: three cases demonstrates not duly alleges petition “In the case an officer this suit property possession office, appointed, and in lawful thereto, appointed by appertaining lawful was which he authority, him in such and the interference with threatened alleged possession by persons and his removal therefrom legal authority having no title to the have no therefor (Italics supplied.) office.” Rankin, App., writ Ehlinger In v. Texas Civ. S.W. injunction hist., temporary could obtained was held that be county prevent appointed suc- legally an elected clerk to judicial carrying the office cessor from out the duties of without clerk) qualified to (the was he determination that elected had question clerk The whether elected hold office. 14 of the Texas Con- under Article vacated his office Sec. relating qualifications of civil officers. stitution residence merely question must held that this determined The Court rather than commissioners’ court. a district court Parr, App., 2d in- Stockwell v. Civ. dispute claimants to office and is not volved between Moreover, judgment subsequently- point in that case was here. opinion precedential and the therefore lacks value. Parr vacated Stockwell, 615. present cause is in no sense a suit for office between contesting The cause out claimants to the title to such office. present proceedings statutory of which the ouster suit arose is duly in which it contended that a should elected official removed from office of official “misconduct”. Article because purporting hold that the order No.

We to reinstate Cause B-77,303 on docket of the 60th District dated June 6, 1962, injunctive ancillary and the contained in the orders bearing nugatory decree said date are and void for reasons accordingly expunged herein set forth and should be from the records of said 60th District Court. appeal temporary injunction

The from the which the State Appeals injunctive to took restraining Court Civil from the order acting E. Richard Culbertson from is in- sheriff grant adequate to the State the relief entitled. to which is Appeals The passing question Court of Civil judge granting whether the trial abused his discretion in temporary injunction may pass upon not the basic order purports B-77,303 upon to reinstate Cause No. the docket brings of the 60th District Court. This is the order which about seeming jurisdictional conflict between two co-ordinate courts together and is the injunctive provisions order with incidental expunged which the is entitled to have from the record. judge assume that of the 60th District We Court will holdings comply with the of this herein out ex- set punge the order of June 1962 from the records of his Court. proceed, In the event he should not a so writ of mandamus will Clayton, issue. Lord v. rehearing

No motion for will entertained. granted. conditionally

Mandamus dissenting. SMITH,

JUSTICE majority opin- The writ of mandamus should be denied. being prepared is without ion has not written. This dissent been waiting majority. for the written views of the office to the Lindsey recently nomination received the Relator Texas, and, upon County, Attorney District Jefferson appointed resignation predecessor, was his immediate vacancy, now the fill and is of Texas to Governor Obviously, County pending. Attorney this case now of the where is have responsible those who the actions of he has not for been proceedings prior conducting responsible the trials and However, realize that appointment. he must to his election and “dally” persecute, with to not to the citizens elected him not courts, merits of as to the to inform himself at once but investigated justice pending the end case or to be him to require much time for done in that case. It should not subjected judge to embar- not realize that district should judge merely exercised his rassment and ridicule because suspend discretion, temporarily from office a man and declined to stag- proceedings had remained in a situation where the removal solely period the action of nant for a of 15 months because of acting Attorney attorney of Texas district and the General require seeking suspend It should rather than to remove. nights long sleepless period spending or the of meditation Meyer’s taking Lindsey Mr. de- Mr. to realize that for positions nothing proceedings. removal can add to the State’s words, In if the facts within its knowl- other State does not have support edge jury, present and to sufficient facts, favor, jury finding The foot- in its it will never have such appointment prints prior Lindsey’s in- made to Mr. gets busy very clearly Lindsey me that Mr. dicate unless charge case, an endless continuation takes of this we will have needlessly County in that has of the turmoil and strife Jefferson many Lindsey months. Mr. has mandate from existed for diligence Meyer any people other to act with to end that given speedy of the public trial and either cleared official is charges. charges against him As has or convicted of such litigation stated, ending to all heretofore there should be duty especially type the solemn that of the involved here. It is guilty protect Attorney prosecute of a and to State’s performing duty remember innocent. In he should forever particular court he is that he of a when invokes govern subject procedure and control rules of that same special prosecutor lawyers. other I understand how the cannot Acting (former Attorney) in admit can one breath good say faith, Judge and then Gary has at all times acted in Judge Gary’s rulings adverse on the motion to because State’s suspend depositions, and its motion to he took a take nonsuit and Court, filed the same removal suit in the 136th District because it opinion Judge Gary. was his that he could not win his case before transcription This Court has it the rul- before several ings by Gary many presented made on the motions his consideration and action thereon. The a nonsuit State took Judge Gary suspend after temporarily ruled on its Mr. motion Meyer Judge Gary’s from office. remarks in connection made temporarily with his suspend Meyer refusal to Mr. demonstrate very clearly that the State would have obtained a fair trial Judge Gary’s stating not, court. making After that he was ruling, taking his petitions signed by into consideration certain signed petition individuals and Jury, the Grand the Court say: went on to “* * * urging motion, Your Walley, of this Mr. the various required acts you mentioned, are all min- nature, isterial except investigation alleged of his own offenses, that, sure, I largely accomplished. am has been I realize that there will permitted be delicate situations if he is to remain in office. questions There well be serious as to permitted conduct in that office if he is to remain in office. permitted If he is office, certainly to remain in he will under greater burden than ever before in all his life to enforce law and order. “Your temporary suspension motion for only mentions you like, you my

indictments. If I will read exact notation on ‘Presumption that. of innocence under the Constitution and laws, considering even purpose indictments for proceedings.’ criminal It seems to me that for this Court to petitions consider presented which have been the de- fendant, guess I you that’s them, what would call on the one hand, request by or the Jury hand, Grand on the other discretion, would be NOT exercise requires, as the law but rather would else, submit to the discretion of someone requires. NOT as the law requested alone, “To base the action on the indictments me,

seems to would amount to a submission this court to exercising Jury, discretion of the Grand rather than dis- myself, Laughlin requires. cretion case, as the law In the I have meditating days part for some several on the that opinion you finally me, Adams, respon- that read to Mr. where behalf, occupying

dent chair testified in his own the witness against days. by for several He was confronted witnesses filing Following report, him. the Master’s a motion suspend relators court respondent office while findings consideration, had the Master’s denied. under was Supreme per- opinion, As I read that the action of the Court judge mitted that district continue to function as a district though judge it had at that even before it time evidence ultimately judge. held sufficient for removal of that district opinion? Am I correct in statement “MR. ADAMS: That’s correct. “Considering some of exist discretion that does broad significant judges,

district I think milestone is a rather point Jury again, secrecy in the law. I would out of Grand proceedings is as it should But the be. discretion of Grand Jury, segment public, the discretion of of our will not be long occupy substituted for the discretion of this court so as I this bench. temporary suspension

“The motion for denied.” therefore time, adopting very largely In the interest of I am Gary’s why my brief filed in this reasons the writ Court logical legally con- mandamus should not issue. sound His upon. against granting improved clusions the writ cannot be Therefore, unnecessary delay my decision it is the rendition of study making independent solely purpose in this for the case case, especially open in view of the announcement made probability would in all the Chief Justice that decision regular anytime announced at before the date for the formal of orders. announcement

If, respondent contends, jurisdiction 60th still lies in the (Judge does, only Gary’s Court), and I think it then appropriate requir- would one order to be made this Court ing proceedings in the 136th District Court. the dismissal of Ward, I first dis- 285 S.W. 1063. will Cleveland v. taking a nonsuit. cuss the action of the State no doubt the 60th District Court There can be but what acquired jurisdiction removal suit to hear and determine the first actively Meyer, and asserted at granting Judge Gary’s May order least until when motion to a nonsuit handed down. Unless the take State’s void, Gary prevail. must actions of 60th Court were spoke Hurt, 595, Clayton This Court in v. 88 Texas 876, 877, discussing jurisdiction, saying: general jurisdiction a “Where in the exercise of ordinary functions, its judicial judgment a a cause renders in it person has over defendant and subject-matter controversy, judgment such is never void, appear, no matter erroneous how it from the face otherwise, of the record to be.” Citing Johnson, 251, 600, Renfroe v. 2d * * * say filing

the relators that “absent the question of the ‘cross-action’ there can be no but that the Texas had the ab- right solute support to take a thq non suit.” does Renfroe position thing, taken counsel. Another courts neither are blind litigants outward powerless prevent evidence of bad nor faith “dallying” court; and, from with the then we must remember judgments days court had control of its for 30 after May 22, 1962. Renfroe, supra, contrary to the assertion of relators that upholds right” nonsuit, probably “absolute to take the leading qualifying right, language case such quoted as witness this by the court from the Appeals decision the Court of Civil in that case.

“ *‘* * In a jury, case tried without at time before announced, plaintiff may decision is nonsuit, take but privilege given by entirely the statute is not without limitar- tion. policy It is litigation, of the law to avoid needless public policy requires legal there an end to contro- ’ ” * * * versies. present case, every

In the necessary party was before the 21, May court on and a definite trial date had been set for proceeding June in a joined which issue had been for more year. “Fearing than a happen, actually what would as it did happen, ing Meyer taking nonsuit, alleg contested the good part representing absence of faith on the of counsel the State.”1 n quotations, 1. All matters unless otherwise indicated are taken from

Judge Gary’s brief. right faith has held to limitation Good Inc., Butler, 260 S.W.

take nonsuit. J. A. v. R. B. Walsh & Co. prior w.o.j, er. 2d 952. The statute dism. 262 S.W. (Art 2182, present built- R.S.) T.R.C.P. has a and the Rule language therein, limitation as witness Walsh: * “* * Johnson, However, in the case of Renfroe said privi- Id., the 2d S.W. lege en- plaintiff is not take a nonsuit thus extended to the tirely Indeed, expressly provides the without limitation. rule thereby pre- exercising right shall not that the action in such right claim judice party heard on his the an to be adverse implies relief, that a think the rule for affirmative and we good right, plaintiff, must act in faith. of such exercise * *” * (260 890.) S.W. 2d at strong nearly Walsh, Judge my opinion Gary’s, in and is not Judge presented Gary the below. When a case as one which was dismiss, had on the cross-action been the its motion to State made hearing. cross- after a file for and had been amended months asserting plaintiff actively motion on behalf the good faith, purpose of cir- for the was not in but made cumventing District Sworn of the 60th Court. having allegations been unsuccessful were made that Meyer upon suspension temporary at procuring of Sheriff in occasions, change procure courts and his sus- would least two pension hearing, tender of or without and without witnesses challenge Acting to the Dis- “In the face of this sworn evidence. hearing Attorney, his assistant he failed to attend the and trict allegations deny of bad faith.” refused although Judge Gary, had in his well have doubts he leading concerning up to the motion for the mind the motives finding nonsuit, upon predicated a evidence which could be lacked that: part It has said Counsel. of bad faith on State’s acting innocently, “Acting good honestly, means faith all purpose, absence informa- unlawful and in the without action uncon- render such tion or belief facts that would * *” * 900, 904, Brookins, (Yarbrough scientious. dism., citing 716). er. 28 C. J. suspicion counsel, may Meyer, well have had and his suit, immediately dismissal the 60th District suspended and filed another court the sheriff

new one would be evidence, representation by notice, hearing, or counsel. without knowledge only of counsel of such fact could come Proof Attorney appearing Gary. Acting District then before “The proceeding and his assistant absented refused himself from plans (Emphasis added.) to disclose counsel.” “acting good innocently acting honestly If faith” means and in the absence of of facts would information belief which indicates, unconscientious, render such action case cited subsequent peradventure beyond circumstances of doubt disclosed predictions exactly, completely, that the sheriff’s were and fears unerringly Acting days accurate. Nine Dis- after Assistant Attorney Maynard trict reply questions refused to asked in hearing open good impugned action, faith we Acting going Attorney find before another court on substantially summarily pleadings suspending same hearing. sheriff without a appropriate

This would seem to be an time to recall the Canons governing profession, particular emphasis of Ethics our with on 19, binding every just lawyer: No. State’s Counsel as it does other “The conduct of a member before the court and other with *” * * by members should be characterized candor and fairness. say To that permits shopping “candor and fairness” for a by Sovereign forum counsel for the of Texas under the by place emphasis circumstances shown this record on is to the form plainly apparent rather than substance. “It is that Gary, every knowledge person and other who has of the maneu- (what vers State’s Counsel now knows aas fact was sus- pected before) taking that the actions in the nonsuit were not fairness; only motivated ference, reasonably candor and the and in- submitted, jurisdiction it is is to avoid the 60th procure something to Court elsewhere which had been prior denied on two occasions.”

Right to Reinstate Cause “Judge ‘original Gary reinstated the filed suit’ relators only days granting nine after he had order to entered the leave take the This was done at a nonsuit. time when acts of the beyond question relators had their demonstrated motives seeking clean; but, upon contrary, the nonsuit were good apparent. By time, evidence of lack of faith then just Meyer’s pre- the relators had what done counsel had — they procure dicted would do refile another court and 580 —

summary suspension days on four before the date set trial the merits in the 60th District Court.”

During following thirty-day period entry of an order judgment or the district court retains over the same jurisdiction proper. and take such action thereon as the court seems Gulf, Muse, 352, See & F. R. C. S. Co. v. Texas 109 207 S.W. 897, Practice, also, McDonald, 4 A.L.R. 613. See Texas Civil 1421, 1803; Storage 657; Sec. 33 Texas Jur. 2d Dallas & Co.W. Taylor, 315, 1031, 1034; v. Harrison, McEwen v.

162 Texas 2d 706. Baker, This said in Garza v. 487: “* * * peculiar sphere, is itself In the district court its own independent supreme power, and court has in its during authority inquire judgments or revise its into constitution, when, organization period very of time change power it still alter or them. This has been has practice reference the uniform decision of this with organization. judgments its first district courts from juris- It is invoked well to remember that the State first so, Having done became diction the 60th District Court. courts, litigation governing subject district to the usual rules spelling 329-b, TRCP, the inherent out one Rule judgments, trial court has over its own which a simply placing beyond which the control ceases. Counsel a time following during the month knew that time for the at granting could be revised May the nonsuit the order — Meyer or on on motion of Sheriff set aside either motion; and, could be taken that the action own further Court’s good [Muse, supra]. or without reason”. “with nothing calcu- might mention, passing, more that “We flagrant open judge than protective action in a provoke to lated avoid, judgments the evade, of Court.” prior and flaunt to efforts Having Meyer, without suspend two efforts to Sheriff made testimony, and dur- proffer admissible a witness tender of of own order ing Gary control over his had a time when they brought the action from May 22, on relators another until Had relators waited June now seek relief. unseemly But, procéeding might presented. with situation complain haste, now because district- ill them to behooves simply right control its own invoked its constitutional to protect jurisdiction orders so as to court. the the I next contend that the 60th District had parties subject over the filed and the matter of the cross-action Meyer, Sheriff and that the with Process State was served Meyer. the Cross-Action of September, 1961,

In for proceeding file after the had on been seeking months, Meyer some six filed his cross-action Sheriff against affirmative re- relief the in whose behalf the relators being maintained, Jr., proceedings Walley, moval were then G.W. counsel, Allegations their of Texas. made to the State were being hampered discharge effect that the Sheriff was persons duties because of the activities of the several men- sought together “quiet tioned. He title” his office with permanent injunction together relators, the State and the counsel, prevent with their per- further with the interference formance his duties. Process was served. through State, Walley, quash The Mr. filed a motion to ground “improperly

citation (a) had State served” because the service was not in with accordance the Rules Procedure, being specified controlling; Civil (b) none begun service “was not in a lawful and correct manner” as re- again quired by Rules, particular being cited; (c) rule completed the service was not nor the return “a was made in required by lawful and correct manner” as some undisclosed rule. prayer quashed, citation be set aside and held naught. In quash an amended motion to citation and service thereof parties Walley, filed Mr. and the other defendant previously cross-action reiterated the same contentions made. By 8, 1961, Judge Gary an order dated sustained November including quash defendants, the motion to filed all of State, filing and an to that order effect was so entered. Without any answer, relators, acting and the under still guidance Walley, original peti- of Mr. filed a second amended tion, Again, prior on December he had done on the occasions, Judge granted Gary leave, date, fixed answer or- hearing process, dered service and set date for on the motion temporarily suspend Meyer. Meyer originally The suit for removal of Sheriff insti- George rel, Texas, ex by and in the name of “The tuted State Jr., Walley, by Dishman, plaintiffs filed G. et al” and was- W. Mr. “Acting County, Attorney Texas”. of Jefferson issuing “acting” appointment out of Walley was so under an Clayton suspension parte temporary by Harold ex process days prior thereto. Service District Court a few 136th delivering by copies upon the on the cross-action was served State through “acting by and the said to thereof the several relators defendants”. might to process insufficient If it be conceded have been that litigation bring (a not fact which is of Texas into the State acting- nevertheless, State,

necessary herein), for a decision through counsel, quash to not motions filed one but two process. doing, full In so came ambit State within Rule 122: quashed

“If the citation or service thereof is on motion defendant, entered such defendant shall be deemed to have appearance Monday at o’clock a.m. on the next after ten expiration days day (20) after the which the citation on quashed, deemed to have service is and such defendant shall be appear duly require served so as to him answer so, may time, judgment that he fails default at if to do against him.” be rendered defendants, including

An answer was due said thereafter, Texas, 4, 1961, any on and at time December Franki, judgment Mr. have in his default could been entered. antedating Rule cites notes many decisions under statute ap- proposition decisions this court for general appearance, pearance operates and it is immaterial the motion is sustained or overruled. whether 120a, providing promulgated has Rule This now new However, statutory special appearances, a this Rule move. urged scarcely be September and it can until effective only, effective, retroactively case for this made September, 1961. ignored process, continued but Had the State of removal, prosecution ques- appear another of its suit for might and, presented; possibly result a different would be tion citation, having having acknowledged However, the a reached. party the cross- quash, became appeared move to Meyer The cross-action the Court. of Sheriff and was before action hear and was of the Court to within 60th District determine. appear answer required was and Remember that the State Meyer December by 1961.

the cross-action filed Sheriff on pleading, challenging yet, not It has even therein filed Now, jurisdiction to hear and determine the cross-action. State, Court, time, this first for the in- in-

before cluding for the counsel litigation Walley, Mr. from its who has been in the contending: ception, (a) a attack it is make collateral thereon suit, wholly independent and is in fact and unrelated to the main against Texas; (b) a no claim that the suit of there is State given cross-action; (c) has consent be sued in said State with, “wholly of, independent the same is unconnected and has grown subject out of transaction which constitutes matter of the main suit”. independent

The contention that the cross-action is and un obviously related the main suit and without is frivolous merit. abundantly Counsel for the makes it that the of Sheriff clear acting Texas, by persons very relators, Court as before this brought against many proceedings has various him in courts over He has County (the State. been indicted in the District Criminal Court of being original Jefferson indictment attached to the petition) and relators some of were members of that Grand Jury; Jury empaneled by he has been indicted the Grand Court,2 joined 136th and members thereof have the ranks against proceedings him; of “relators” in criminal cases hearing him have been to distant without a transferred counties county. fully pleaded in his home These matters are in the Sec Original Meyer. Amended ond Answer and of Cross-action Sheriff every instance, party In The State of Texas has been to the proceeding and one of or more the relators in this matter have Many been involved therein. of the instances have occurred since filing Meyer. the cross-action circumstances, opinion these Under in An- derson, Clayton State, & 122 Texas Co. peculiarly appropriate. brought by State, The suit “on Allred, General, Attorney the relation of James V. James V. Allred, Attorney injunction restraining to secure an General” legality empaneling 2. The the action the 136th District Court Jury already when Grand one was existence in the Criminal District Court subject opinion Clayton, was the of this Court’s Lord v. S.W. 2d regu- penal statute the defendants from lating trucks, violation of further monetary penalties recovery therefor. and the denied, having application temporary injunction for a An agreement employees An- State, numerous arrests of Thereupon, derson, Clayton officers. were made pro- original defendants, Anderson, Clayton filed a cross-bill arrests, restraining preventing temporary further order cured making many as well as parties enforcement officials thereto law Railroad the members of the Commission. trial, Then, State, took a for the when the case was called relief, prayer and the attention

nonsuit to its for affirmative as hearing Upon cross-bill. the of the trial court was called to the later, thereon, the bill a month contended the State then sought injunction upon an face that the relief showed against its showing a penal a vio- the enforcement of statute without rights. property 2d at 107-108. lation of vested 62 S.W. may recognizing Court, the and that the State This rule consent, then said: sued without its that, a rule where “But the further the authorities sustain judicial rights voluntarily for state determination, files suit and submits will thereby, and the defense it will be bound properly prove defensive. plead and all matters be entitled to right any answer or cross- defense This includes the complaint to make * * * controversy (citing germane matter in to the cases). having jurisdiction the district

“The state invoked competent County, jurisdiction, for a court of Nueces judicial question as to whether determination of the foregoing act, subject provisions defendants were subject penalties therein. It and for the described became liable litigants, except far such in so to the same rules as other may may or in favor of the state statute rules be modified exemptions inherent inapplicable unenforceable or because * * * sovereignty (Citing cases). competent at the instance of jurisdiction] “That court [of subject-matter parties acquired jurisdiction of the state sought and, having controversy, defendants affirmative cross-bill, jurisdiction of the court after- in a cannot relief plea cross-peti- state that the defeated wards be seeking injunction the enforcement tioners were * *” * 110). (62 p. 2d at penal of a statute. S.W. McCarty, In App., Glenn v. Texas Civ. 2d hist., wr. the Court said: jurisdiction may “A prior enjoin court which is bringing prosecution interfering courts, suits in other appears whenever it jurisdiction that conflicts of arise. though This sois even second suit not identical and is not purpose abatable as one for the same parties.” between same rely upon Norton, Relators the case of Ex Parte 1041, by authority Court non- take agree I suit. cannot application that the Norton case has in a such case as the instant case where a cross-action has filed been involving matters related removal suit. In the Norton case filed, where no had cross-action said: Court granted (Norton) legal “Had the rights relator * * * suit, (the) dismissed the divorce he would [Court] jurisdiction have proceedings such, lost divorce power would have no for a contempt enter order pay alimony, and, failure relator to had the relator been right absolutely the given accorded which was him under the statute, absolutely way there would have been no to enforce * * *” payment alimony the of the back claimed the wife. my case,

It present ap- contention that in the if it should pear deficiency Meyer’s that there petition exists some in in cross- action, may the original Court look to the State’s third amended Meyer’s petition in aid of McElyea cross-action. In the case Parker, et al. v. (1935), 125 Texas 81 2d S.W. 649 this Court said: though plaintiff nonsuit, the “Even has taken a peti- his

tion looked to in aid of the defendant’s cross-action seeking relief.” affirmative has, upon occasions, in mind that this

Bear Court at least two being penal spoken of removal suits as in character. We said in Reyna, 160 Texas 835: State “* * * pointed Appeals, As out the Court Civil this ‘penal character, held in 1890 that the ouster suit is in though defining construed as it were one and must be a crime punishment.’ prescribing Alcorn, its State ex rel. Hickman v. 387, 665.” against bringing Here, State, indictments Sheriff the after removal; and, preparatory to a final sought Meyer, in the time his power trial, sought temporary suspension. It was within cases), Walley in (and counsel Mr. was both successful in Had he been proceed trial on criminal case. Meyer conviction, permanent procuring removal Sheriff 5968, Vernon’s a matter of law. Art. would followed as See have But, procure was made to effort Annotated Civil Statutes. original proceedings, or the either a trial in the criminal subsequent ones. being State, party Instead, all while we find Meyer seeking or not

proceeding whether determine misconduct, with issue office for should be removed from joined, official against bringing repeated persisted indictments pleadings charges which, already their if not within on sheriff invariably therein proceedings, inserted were removal shortly the new indictments. after supra: case, said in the Anderson

As was “* ** hold, record, face To in the to determine the issues could invoke during pendency proceed- suit, in this involved ings pro- could, by agents, criminal institute in that court defendants, ceedings many instances here, pending very in that court for issue then done determination, repugnant to the well-settled rules would be * * *” foregoing opinions announced Meyer pay continue to draw his would fact that Sheriff suspension pecuniary during period would not sustain my suspended does not alter view. injury he were if Greene, Brown, speaking for this Court in Terrell v. 631, 634, said: 31 S.W. * «* * discharg- privilege officer is denied the of an When office, wrong ing which can- functions of he suffers might merely by payment compensated of fees which not be discharge from the of the duties of the office. been derived have obligation legal every moral rests officer to dis- A charge office, independently question of the the duties of his Compensation important is an matter to compensation. of furnishing himself, supporting him of officer, as the means duty, engaged public every in a to while but man honorable compensation; simple pecuniary than there is more there is discharge public duty. that which attends to the faithful of a might county The fact that Terrell have recovered from the prevent commissions allowed him law would not him demanding lawfully from that he should be admitted to the discharge people of of the the duties office which the of * *” * County Tarrant had elected him. against pro-

Relators case have filed the Sheriff civil ceedings embodying in the 60th District Court substance “Failing indictments in the Criminal District Court. effort suspend they swing temporarily, him took another with an indictment in the 136th which was transferred to Court Court; time, and, again, Criminal District they and for the third against procured immediately indictments the Sheriff were {which County just promptly to Williamson remanded transferred by Judge to the 136th Wood County] where Jefferson remain, they they still pro- albeit are embodied in the removal ceedings.”

Definitely, Meyer prevent cross-action molestation presents justiciable question harrassment for consideration Certainly, Court. arises out activities small group of appears relators and their It counsel. to me to be repugnant justice to the sense of to see such matters continue unchecked. analagous Ferguson,

This case is in no manner Ferguson because there granted injunctions restraining had state officials from enforce- highway ment of open ques- restrictive user statutes [“not tion”, p. procured 2d at and the the issuance 274] appropriate prevent writs to this interference with law presented enforcement. We have no such case here. On the other hand, present- ours is one much more similar to the fact situation University ed in of Texas v. Morris. 162 Texas 344 S.W. plaintiff pending 2d 426. Three suits Morris with in Travis County trial; and, seeking were consolidated for delay Morris try the consolidated trial until could he suit New Mexico defendants, enjoined proceeding one of the until the New Mexico case posed the consolidated case had dis- (337 Appeals of. The Court Civil reversed S.W. 2d considering 169) Court, carefully after matter, and this re- judgment of the instated the trial court.

Order Reinstatement Not Void.

588

Relators, proceeding in labor under the before this Court showing Judge Gary jurisdiction had of that no that burden maintaining position, stoutly his orders were void. In their so principle that relators overlooked of law the fundamental general jurisdiction of the court a matter order of in wherein acquired jurisdiction subject has matter and over certainly against parties presumptively valid, is a collateral Betts, 83, attack. Insurance 158 Texas See State Board of v. following 308 2d 846. Cleveland S.W. Also consider the cases 1063, Ward, 1, v. 116 Texas well as the cases therein 285 S.W. Ward, following of those cited. One Cleveland v. is Barrier v. rehearing denied, Lowery, 118 Texas 2d 11 S.W. 13 reviewing holding 2d 688. That in in Cleveland court said: v. Ward

“* * * that The decision in case clarified law this jurisdiction a district state with reference to the court to any juris- any enter order or take action in a case where previously of another district court has attached to the diction subject-matter distinctly parties is involved therein. It jurisdiction acquired district that court once cannot held suspended destroyed, diminished, by any one or parties, court, any judgment pending an action another far of the latter is so as it conflicts with or order void acquiring jurisdiction. judgment or order of the court first * *” * (Emphasis ours.) 2d 298. 11 S.W. firmly jurisprudence is The rule entrenched Texas general jurisdiction acquired jurisdiction has when purpose jurisdiction for one it will retain all cause of a properly involved suit or which are questions Thigpen Cannon, therein. Chambers & v. involved See become 293; Kaufman, Supp. 384; 25 Texas Witt v. Willis v. Texas 62 Gordon, 241; Courts, par. 53; Texas Jur. 2d 479 Freeman, Texas 2d 428. 327 S.W. Freeman case, Betts, Betts Insurance v. second State Board of In the 279, 281, this said: recognized power control Court’s or over “It is county extremely aof district or court is limited. orders general supervisory authority proceedings over have We primarily trial courts. our Since pending of errors appellate, the correction made in the course of a must, proceedings general thing, as' a other await the trial or concluding judgment final entry decree. A well settled

589 general exception permits this Court to this rule is that which through original jurisdiction an exercise to order a trial of expunge a court to vacate void order and the same from its * * *” (315 p. emphasis by Court.) 2d records. S.W. at 281 case, Tyler, supra; parte also the Betts 152 Texas See Ex first 602, 833; Rocca, 618, parte 261 2d Ex La S.W. 700, 703; Mitchell, 2d writ Mitchell v. 2d no history; Co., Hanlon er. Frazier v. Gasoline 29 S.W. ref.; Silsbee, Burdett v. turning why

Before to still another reason relators should hands, might prevail herein, the doctrine clean well it of just protracted to consider it is what relators seek to do litigation. Obviously, they temporary suspension seek the of litigation. For, they Sheriff as the end result of the if were seeking removal, way open procure has trials many brought; and, despite of repeated criminal one of the cases part Judge Gary, on the insistence no announcement ready proceed to trial on the merits has ever been made unconditionally. Rather, repeated efforts have been made to “temporarily Meyer. suspend” Sheriff statutory authority should consider We for removal of

officers, distinguished temporary suspension, as in Art. Statutes, Vernon’s only Annotated Civil it is a conviction petit by jury a which authorizes the removal anof official. Vernon Attorney Opinion (No. 0-2619, lists an 1940) General’s as hold- ing felony that a conviction of a jury school trustee of a in a non trial does not constitute an automatic removal from office. Nev- ertheless, concerned, in so as the far school trustee was judgment felony just binding of conviction aof ef- by petit a jury. fective as one based verdict a Certainly, following judgment automatic removal not a by distinguished court, by a a conviction from conviction a apparent petit jury, it a is that mere indictment a Grand ground except Jury suspension, constitutes no as a matter judicial exercise discretion. single-sentence Legislature, enactment, using in a only The English plain meaning, of clear and words unmistakable has how, spelled petit jury, other than a a out conviction 5971, reading: can be removed. It is Article officer every of removal

“In case from office for the causes named article, shall be preceding causes thereof the cause or writing, causes be and the truth said set forth found jury.” they Putting together, constitute the these two articles officials, county statutory authority is only for removal of judge, crystal without the intervention clear that district jury, county can remove official from office. great suspension, of discretion deal reference With suspend only power is to judge. vested in the district Annotated the few lines of Art. Vernon’s found in first be Statutes, reads: Civil any for the cita- issuance of the order time after the “At fit, Judge may,

tion, he provided, sees the District as herein if office, suspend temporarily the the officer whom *” * * petition is filed. permissive, mandatory, and to not is be exer- This statute is judge. by in the district The cised discretion confided law with Constitution, memory the Re- with the fresh framers of the Period, provision the for into our basic law construction wrote making upon (Art. V, 24), only jury it a verdict removal Sec. any power never to be conferred on one certain that such was Considering though man, judicial he officer. the en- even be procedure, I that it was the intention of the tire removal submit vested, ultimately, Legislature power to to cause the remove to be having power place body in office: citizen- in ship same petit polling place. represented jury and on the in suspensions So, say temporary unreasonable it is filing automatically petition re- for should not follow Rather, presented of facts moval. it should be basis adversary proceeding parties open in an at which both in court heard, observed, judge put and an informed witnesses him. position to exercise the discretion confided to in expelling it undertakes the task what con- When State position trust, unfaithful officer from his should siders an proceed open ready and to the into armed with the able court taken; and, position there accordance to sustain evidence evidence, prima at least make a rules of law and facie with the allegations. proof of In view of the admissions of the State Judge Judge open Gary is an here honorable made and, good faith, in by of "the at all times acted in view and has courageous record, Judge Gary, this actions of as reflected during reasonably the 15 months it can that at time be said him, actively this case would have received was before But, justified by no orders as were the evidence. evidence such just offered, proof plead- produced, was no witnesses tendered — ings. And, circumstances, judicial discretion was under these exercised in of the officer had elected favor who remain in office until one of citizens. He was and is entitled to warranting things (a) proof suspension two occurred: presented; (b) petit charges jury truth found the of the brought against him. Adequate Through Remedy Had

Relators An At Laxo Appeals. Appeal An Civil legal right perfect validity herein had a relators to test single injunction Gary by appeal order issued 20-day period therefrom within the authorized law. As a mat- appeal perfected ter fact the has been to the Court of Civil Supreme Beaumont, Appeals Judicial District at Ninth however, allowing Apparently, appeal Texas. good just prosecute remain dormant as it has failed faith pending against suit and the criminal indictments the removal Meyer. Lindsey deny 21, 1962, Relator does not that on June following he addressed the letter to the Clerk: Supreme “In view of the fact that the Honorable Court of acquired jurisdiction of Texas has of the above en- by allowing titled and numbered cause the State of Texas to petition file its of Mandamus and Writ Prohibition in said cause, proceed pursue appeal Texas the State will not Appeals, to this Honorable Court of Civil Ninth Dis- Judicial trict of Texas. preparation

“Please submit cost statements for the of the transcript, pursuant 13, 1962, to our letter of June to this office.”

But, impediment, under still another relators labor the ancient liberty rule of clean hands. I quoting and honored take the opinion subject, on the copiously from this Court’s somewhat position in it illustrates which the relators because now find Mims, 29, In v. themselves. Westerman 178, 181, 227 S.W. Greenwood said: 592 man- empowers writs of this to issue “Our statute Court regulating ‘agreeable such principles

damus to the of law 1526, Sayles’ Article Texas Civil Statutes. writs.’ Vernon’s regulating “Among of writs principles issuance mandamus, regarded than otherwise which cannot be settled, 1380 of clearly one which is thus stated Section Extraordinary Spelling’s Relief:

“ equitable, remedy is not but mandamus ‘While legal, by analogy principles prevailing in strictly yet requirement the relator equity it is a uniform courts of clean hands.’ seeking remedy court with must come into High’s Extraordinary effect, 26, see “To the same Section Legal Remedies. Lamar, Supreme speaking for the

“Justice States, rule to that— announces the United “ * * * those, granted who not be in aid ‘Mandamus will hands,’ since the writ issues do not come into court with clean wrong, promote Fisher, remedy one.’ Turner v. ‘to 38, 209, Sup. 56 L. Ed. 165. 222 U.S. 32 Ct.

“See, also, Terrell, 87 Nevell v. 99 570; 971; Risley, Mich. Hale v. N.W. Richards, App. D.C. ex rel U.S. Stevens present a mandamus must rule that he who seeks “The meaning has different application with clean hands general equity equity that ‘he who comes in to maxim Pomeroy hands.’ Prof. states the mean- must with clean come ing follows: of the maxim as

“ actor, who, party, seeks says ‘It that whenever remedy, machinery judicial in motion and obtain some the set good faith, prin- conscience, equitable or other or has violated prior conduct, ciple then the doors of the court shall be in his limine; against to interfere in in the court will refuse him shut acknowledge right, award him behalf, his or to to remedy.’

“He adds: “ ‘ prevent illegality is will It not alone fraud which entering really equity; a suitor from a court of and uncon- conduct, controversy scientious connected with to which the party, repel he is a foundation will him from the forum whose good Pomeroy’s Equity Jurisprudence. is conscience.’ 1 Secs. 397, 404.

“Having grounded petition of concluded that relators amounting to, partici- on conduct to an invitation and hence in, good pation conscience, and act violative of faith hands, follows that did not come court clean relators into with for, required prayed entitle them to the and to relief hence the mandamus is denied.” facts, In addition to the above enumerated I attention call following: nonsuit, taking May

to the After on 1962, (only through days nonsuit) acting afer two assistants Acting Attorney, Walley, Jr., to appeared District W. G. together filing at window of the District Clerk’s office with papers, including number the new removal suit. These at- torneys inquired Deputy Cowling what Clerk court open. According following was to the Clerk’s affidavit rather transpired: unusual events The Clerk checked and stated the open filing (The 58th District Court was for of suits. custom rotation.) Thereupon, was with to file the courts in one of the petition assistants handed the Clerk a in a criminal case and it inquiry was filed the 58th Court. Then was made as open filing, next court for and when that told the next was the Court, 60th of the assistants handed to the Clerk another one. Griffith, Then, case and it was filed in the 60th. Carl one of the assistants, ought open stated that next to be the 136th replied affirmative, when Clerk Griffith handed petition proved to the Clerk removal suit Meyer.

All of the conduct and actions herein outlined indicate a Judge disrespect Gary conscious deliberate as the result Gary’s refusing Meyer suspend evidence, action in without clearly me, very and indicates no doubt convinced masterpiece Gary, trifling here in the art of with justice. leading acts the administration of relators May Judge Gary they on ready to believe would 4, 1962, filing Court on June for trial in the 60th their of a thereafter, immediately testify their nonsuit refusal under taking good nonsuit, faith in their oath as to their immediate filing suit the 136th do of a new not rest compelled good conscience, and the should be foundation of Judge rulings appeal Gary’s prosecute to Beaumont, Appeals at Texas. of Civil Texas, in It must remembered that we have statute provides that “No officer in this State shall Article prior any for he have committed removed from office act applies to for his to office.” This Article actions election Meyer last elected officers. The fact that Sheriff removal of alleged Texas, County, 8,1960, after the of Jefferson on November Judge misfeasance, it was not an abuse of discretion acts Gary Judge Gary’s suspend Meyer, temporarily and to refuse to regard and laws of actions with due Constitution were Texas. reinstating

Judge Gary’s removal suit should be order delay. proceed In upheld, any event, to trial without case should proceed to trial on cross- is entitled to other courts. The action without interference orders of suit and not a sus- it has filed removal should realize duty promptly. suit, public In pension act owes the Judge Gary that under all the event that should conclude himself, he recuse then that should be made should circumstances Presiding a reasonable time order that known within Judge assign may immediately Administrative District of the preside trial to the 60th District Court another writing dissent, majority I have read this case. Since of opinion, nothing opinion prevent I see in that would though cross-action even the new removal suit trial county. other tried Jefferson never deny petition for writ of mandamus. I would July 2, Opinion delivered F. Bland

James J. FreeW. July 11, Decided

No. A-8079. 2d 297

Case Details

Case Name: State Ex Rel. Dishman v. Gary

Court Name: Texas Supreme Court

Date Published: Jul 2, 1962

Citation: 359 S.W.2d 456

Docket Number: A-9088

Court Abbreviation: Tex.