Carlos Razos v. Emma Drusina

Fifth Circuit

Carlos Razos v. Emma Drusina

440 F.2d 795, 1971 U.S. App. LEXIS 11309

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 17, 1971

Docket30548

StatusPublished

Cited by1 cases

This text of 440 F.2d 795 (Carlos Razos v. Emma Drusina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carlos Razos v. Emma Drusina, 440 F.2d 795, 1971 U.S. App. LEXIS 11309 (5th Cir. 1971).

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Opinion

PER CURIAM:

Razos appeals from the District Court’s dismissal of his complaint, in which he sought the empanelling of a three-judge court to determine the constitutionality of Texas Rules of Civil Procedure 746, 749, and 750. Here he asserts that Rules 749 and 750, which require an appeal bond in forcible entry and detainer cases and prescribe the form to be used in filing such a bond, violate the equal protection clause of the fourteenth amendment. Thus he argues that a three-judge court should have been convened to decide whether enforcement of these rules should be enjoined. See 28 U.S.C.A. §§ 2281, 2284.

While section 2281 is not a measure of broad social policy, we are convinced that the statute is expansive enough in scope to encompass the situation here. The Texas Rules of Civil Procedure, promulgated by the state supreme court but subject to legislative veto, have the force and effect of statutes, especially when they repeal prior legislative enactments. See Callahan v. Stover, Tex.Civ.App. 1953, 263 S.W.2d 630; cf. Sibbach v. Wilson, 1941, 312 U.S. 1, 14-16, 61 S.Ct. 422, 85 L.Ed. 479. See also Gilmore v. Lynch, 9 Cir. 1968, 400 F.2d 228, 230. Without reaching the merits of this controversy, we conclude that the District Judge’s refusal to request a three-judge court was erroneous. E. g., Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320, 322-324.

Reversed and remanded.

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PER CURIAM:

Razos appeals from the District Court’s dismissal of his complaint, in which he sought the empanelling of a three-judge court to determine the constitutionality of Texas Rules of Civil Procedure 746, 749, and 750. Here he asserts that Rules 749 and 750, which require an appeal bond in forcible entry and detainer cases and prescribe the form to be used in filing such a bond, violate the equal protection clause of the fourteenth amendment. Thus he argues that a three-judge court should have been convened to decide whether enforcement of these rules should be enjoined. See 28 U.S.C.A. §§ 2281, 2284.

While section 2281 is not a measure of broad social policy, we are convinced that the statute is expansive enough in scope to encompass the situation here. The Texas Rules of Civil Procedure, promulgated by the state supreme court but subject to legislative veto, have the force and effect of statutes, especially when they repeal prior legislative enactments. See Callahan v. Stover, Tex.Civ.App. 1953, 263 S.W.2d 630; cf. Sibbach v. Wilson, 1941, 312 U.S. 1, 14-16, 61 S.Ct. 422, 85 L.Ed. 479. See also Gilmore v. Lynch, 9 Cir. 1968, 400 F.2d 228, 230. Without reaching the merits of this controversy, we conclude that the District Judge’s refusal to request a three-judge court was erroneous. E. g., Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320, 322-324.

Reversed and remanded.

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Bluebook (online)

440 F.2d 795, 1971 U.S. App. LEXIS 11309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlos-razos-v-emma-drusina-ca5-1971.

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