Case Information
*1 Honorable Reuben Wlliams
Searetary to 'the Governor
Auustin, Texas
Dear Mr. Williams:
Opinion No. O-1586 Ret hthority of Governor to ap- point an attorney to try a suit where the regular judge is disqualified.
This department acknowledges receipt of your letter of the 9th inst., in which you stats,
'Mr. J. F. Hair, Attorney for the Plaintiffs in Cause Ho. 62361, the Stata of Texas, et al V. Gulf Pro- duation Company, at al, pending in the 63rd Judicial Distriot Court of Travis County, Texas, has requested Governor O%~nisl to appoint a speoial Cistrict Judge to preside in said Cause for the reason that all four Judges in the Administrative Judioial Distriot, inolud- ing the presiding Judge before whom the ease is pending, are disqualified to sit in this case and for the reason that Mr. Hair will not agree upon the appointment of an attorney to aat as Special Judge.
"Itisoxrr understanding that under Article 1985, Revised Civil Statutes, 1925, the Governor is authorized to designeta some District Judge in an adjoining district to exchange bentihes and try a aase when the presiding judge has oertified his disqualification to the Govarv:o?. Mr. Bair has taken the position that Article 1885 does not apply to thotie oases pending in a Distriot Court where thwpresiding Judge of the AZPninistrative Judioi- al District is disqualified to try the'case. I will appreciatd your informing 'the Governor whsthbr or not he is authorized to request the Judge before whom this cause is pending to exchange benches with a Judge of an adjoining district to try this case." *2 Honorable Reuben Williams, Page 2 (O-1666)
In the ease of Moore v. Davis, 32 S.W. (2) 161 (Cw. App.), it was held that the admi&trative juacial act of the 40th Legisla- ture (Vernon's Article 200a) relating to themsigcwnt of Distriot Judges is annulative of other statutes relating to the ssnw subject. We see, therefore, that it is not necessary to consider this act in : an-ring the question propounded by you.
In view of the decision in the case of Rarris v. State, 288 S.W. 450 (Court of Criminal Appeals), i*tll not be neoessary for us to disouss the question whether parties to the suit by virtue of Arti 5, Section 11 of the Constitution may agree upon an attom- ey tc try the ease. Your lettar states+hat one of the attorneys will not agree upon the appointment of an attorney to act a8 special judge.
This loaves us to a consideration of Article 1665, R.C.S., 1925, which reads as follcwsr
"No change of venue shall be necessary because of the disqualification of a distriot judge, but he shall immediately certify his disqualification to the Gcvemor,'whsraupon the Governor shall designate some diatriot judge in an adjoining district to exchange and try such case or oases, snd he shall notify both of said judges of such orders and such judges shall exchange districts for the purpose of disposing of suoh case or oases, If said judges be prevented from exchanging districts, the parties or their counsels ssay agree upon an attorney of the court for the trial thereof, and failing to agree, suoh fact shall be certified to the Governor by the District Judge, or the special judge, whersupon the Governor shall appoint a person legally qualified to aot as judge in the trial of the oa8e.s
If the district judge before whom the oause is pending has not certified to the Governor his disqualification, the Governor does not have authority to take any action whatever with reference to the ease . Your letter does not state whether the Governor has reoeived a certificate of disqualification from the District' Judge.
If the Governor has reoeived a oertifiaate of disqualifica- tion from the District Judge, he is not authorized in the first in- Stan& to appoint an attorney as a special judge. See Blanks v. State, 266 S. W. 452 and'Harris v. State, supra. The Govemor~erely has authority to designate souse district judge in an adjoining district to
Ronorable Reuben Williams, Page 9 (o-1566)
to exchange benohes with the regular judge and to notify both judges of his order.
If the judges are prevented from exchanging benohes,
the parties to the cause may then agree upon an attorney for the tril of the *ase. If the parties fail to agree, suah fact may be oartified to the Governor by the Distriot Judge, and upon the x-e- oeipt of a certificate of the inability of the parties to agme, the Governor may then appcint a person legally qualified to act as Judge.
Yours very truly ATTORNEY GENERAL OF TEXAS BY s/H. Grady Chandler Ii. Grady Chamdler iissistti HGG:BT:egr
APPROVED OCT 14, 1939
s/Robert E. Kepke
&stingATTORNEYGENERAL OFTRXAS
Approved Cpinion Compnittae By BWB Chairman