Ex parte Soto

407 S.W.2d 787, 1966 Tex. Crim. App. LEXIS 825

• Court: Court of Criminal Appeals of Texas
• Decided: November 2, 1966
• Docket: No. 39934
• Status: Published

Opinions

OPINION

This is an original mandamus proceeding under Article V, Sec. 5 of the Constitution of Texas, Vernon’s Ann.St.

Notice of appeal was given in petitioner’s case, and as the time for perfecting the record under Article 40.09, Vernon’s Ann. C.C.P. neared its end, petitioner’s attorney on appeal made application for an extension of time to file such record to the Honorable W. A. Messer, Judge of the 146th Judicial District Court, sitting for the Judge of the 27th Judicial District Court during his absence at the State Bar Convention. The extension was granted, but upon the return of the Judge of the 27th Judicial District to his district, he granted the State’s motion objecting to the record as not having been timely filed, and thereafter refused to approve the entire record of appellant’s case.

It should be noted that'the Judge of the 27th Judicial District in no wise attempted to set aside the order of the Judge of the 146th Judicial District, but instead granted the State’s motion as stated above.

Article 199, Sec. 146, Vernon’s Ann.Civ. St. provides in part as follows:

“ * * * In case of absence, sickness or disqualification of any of said Judges, any other of said Judges may hold Court for him * *

Under the holding of this Court in Richardson v. State, 154 Tex.Cr.R. 422, 228 S.W.2d 179, and Johnson v. State, 61 Tex. Cr.R. 104, 134 S.W. 225, and the civil cases of Shaeffer et al. v. Smyth, et al., Tex.Com.App., 37 S.W.2d 1012; Pratley v. Sherman-Williams Company of Texas, Tex.Com.App., 36 S.W.2d 195, and Schulz v. Boyd, Tex.Civ.App., 32 S.W.2d 483, there can be no question of Judge Messer’s authority to grant the extension of time.

The Judge of the 27th Judicial District Court is directed to approve petitioner’s record on appeal for transmittal to this Court.

It is so ordered.