State Ex Rel. Dishman v. Gary

359 S.W.2d 456, 163 Tex. 565, 5 Tex. Sup. Ct. J. 486, 1962 Tex. LEXIS 703

• Court: Texas Supreme Court
• Decided: July 2, 1962
• Docket: A-9088
• Status: Published

Opinions

ORIGINAL MANDAMUS

ASSOCIATE JUSTICE JAMES R. NORVELL

delivered the opinion of the Court.

This cause grows out of a judicial stalemate existing in Jefferson County, Texas, which was brought about by conflicting orders issued by the judges presiding over the courts of the 60th and the 136th judicial districts. A legal question as to the jurisdiction of courts is involved and there is nothing in the record before us which reflects upon the integrity or good faith of the judges or the district attorneys involved.

The specific relief requested by the State of Texas is a writ of mandamus requiring the Honorable Gordon D. Gary, judge of the 60th District Court, to expunge from the record a certain order, said to be void, entered by him on June 6, 1962, which purports to reinstate an ouster suit originally brought by the State against Charles H. Meyer, the Sheriff of Jefferson County, Texas. Articles 5970 et seq., Vernon’s Ann. Texas Stats. The State also sought vacation of the ancillary injunctive orders contained in said decree of June 6. Our original jurisdiction is invoked under the provisions of Article 1733, Vernon’s Ann. Civ. Stats. See, State v. Ferguson, 133 Texas 60, 125 S.W. 2d 272.

Briefly stated, the circumstances giving rise to this case are these:

On March 27, 1961, an ouster suit on behalf of the State was filed against Meyer in the 60th District Court and docketed as Cause No. B-77,303. Various proceedings were had in this cause; a cross-action was filed by Meyer, the petition was amended and attempts made to take depositions. These need not be examined in detail because on May 21, 1962, the State moved to discontinue the cause “without prejudice to the right of the defendant to be heard on his counterclaim”. This motion was contested by the defendant but the Court sustained the motion and ordered a dismissal of the ouster suit.

On May 31, 1962, at a time when no ouster suit was pending in the 60th District Court, the State of Texas, through W. G. Walley, Jr., the acting Criminal District Attorney of Jefferson County, filed an ouster suit in the 136th District Court of Jefferson County against Meyer.¹ This suit was docketed as Cause No. D-79,254. After citation was ordered issued on the petition, Article 5979, a motion requesting that Sheriff Meyer be suspended from office was also filed. Article 5982.

On May 31, 1962, the Honorable Connally McKay,² who was presiding as judge of the 136th District Court, entered an order temporarily suspending Meyer from the office of Sheriff of Jefferson County and appointing Richard E. Culbertson to discharge the duties of such office “for the time being and during the pendency of the suit”. This order recited that the requirements of Article 5979 as to citation, etc. had been complied with. Culbertson duly qualified as acting sheriff by complying with the provisions of Article 5982.

Also on May 31, 1962, and about thirty minutes after the rendition of Judge McKay’s order suspending Sheriff Meyer from office, the Honorable Gordon D. Gary issued a temporary restraining order enjoining and restraining Richard E. Culbertson from acting or purporting to act as Sheriff of Jefferson County or from interfering in any way with Charles H. Meyer in the conduct of the office of Sheriff of Jefferson County. This restraining order remained in force until June 1 at 10 A.M., when it was continued until June 6, 1962, at which time Judge Gary-extended the terms of the temporary restraining order against Culbertson “until further order of this Court”. The result of this order was to bring about a judicial impasse. Sheriff Meyer cannot act as sheriff without violating the order of the 136th District Court suspending him from office. Mr. Culbertson cannot act as sheriff without violating an injunction of the 60th Judicial District. In effect Jefferson County, with a population of 245,659, is left without a chief law enforcement officer.

The order of June 6, 1962, as well as the restraining orders heretofore mentioned, were all entered in Cause No. B-77,303 on the docket of the 60th District Court. The Court, by its order of June 6, sought to reinstate this dismissed ouster suit over the protest of the Criminal District Attorney by directing that the State’s amended petition and suit in said Cause No. B-77,303 “be and the same is hereby reinstated on Defendant’s Amended Motion therefor”.

This provision purporting to reinstate the cause and reassert jurisdiction over the subject matter of the suit is the basic cause here involved. The injunctive orders relating to Mr. Culbertson, as well as those provisions of the June 6 decree, restraining the parties representing the State, i.e., the relators and the Criminal District Attorney from taking any further action in the cause pending in the 136th District Court, No. D-79-254, or any other court excepting an appellate court” are ancillary to and dependent upon the order reinstating said Cause No. B-77,303. If reinstatement falls, the ancillary orders fall with it.

As we view the case the controlling question presented is whether or not a District Court having relinquished jurisdiction over a statutory ouster cause may thereafter reassert jurisdiction over such dismissed cause, so as to defeat the jurisdiction of another co-ordinate court which acquired jurisdiction of the ouster suit at a time when there was no ouster suit pending on the docket of the first court mentioned.

Article 5, Sec. 24 of the Texas Constitution and Title 100 of the Revised Civil Statutes, (Articles 5691 to 5997, inclusive, Vernon’s Ann. Texas Stats.) relate to the removal of certain public officers. Articles 5970 to 5987, inclusive, provide that a district judge may remove a sheriff as well as other designated officers from office and prescribe the procedures that govern such suits. The remedy of ouster is one which “belongs to the State, in its sovereign capacity, to protect the interests of the people as a whole and guard the public welfare by ousting incumbents of office who wrongfully hold to the injury of the public”. State Railroad Commission v. People, 44 Colo. 345, 98 P. 7, 22 L.R.A., N.S. 810. In such proceeding the district attorney is a proper representative of the State and by virtue of his office has control of the prosecution of the cause. Article 5, Sec. 21, Constitution of Texas; Staples v. State, ex rel. King, 112 Texas 61, 245 S.W. 639; Reeves v. State ex rel. Mason, 114 Texas 296, 267 S.W. 666; State ex rel. Hancock v. Ennis, Texas Civ. App., 195 S.W. 2d 151, ref. n.r.e. Except where otherwise provided by statute, the rules of practice governing other civil cases control. Article 5981. Under the procedures set forth and clearly inferable from the pertinent constitutional and statutory provisions, as well as under the express wording of the Texas Rules of Civil Procedure, it appears that the district attorney, as leading counsel for the State, was empowered to discontinue Cause No. B-77,303 on the docket of the 60th District Court. State ex rel. Hancock v. Ennis, Texas Civ. App., 195 S.W. 2d 151, ref. n.r.e.; Ex parte Norton, 118 Texas 581, 17 S.W. 2d 1041.

In Norton’s case above mentioned, the plaintiff, J. F. Norton, took a nonsuit under Article 2182 from which Rule 164 is taken with no change in verbiage. The court refused to allow the nonsuit until the plaintiff should pay up some back alimony. The case came to this Court upon habeas corpus with Norton contending that the order of contempt entered as a result of his refusal to pay such back alimony was void. This Court agreed with this contention and held that the right to take a nonsuit is absolute and unqualified when a motion therefor is made before the jury has retired, in a jury case, or before the judge has announced his decision in a non-jury case. This Court further said:

“Had the court granted relator his legal rights and dismissed the divorce suit when he in open court took a nonsuit, he would have lost jurisdiction of the divorce proceedings as such, and would have had no power or jurisdiction to enter a contempt order for failure of relator to pay alimony, and, had the relator been accorded the right which was absolutely given him under the statute, there would have been absolutely no way to enforce the payment of the back alimony claimed by the wife. Wright v. Wright, 6 Texas 29. Inasmuch as the relator had the right to dismiss his divorce action, and thus end the divorce proceedings, we are of the opinion that the trial court could not prejudice his rights by refusing to allow the nonsuit and dismiss the suit for divorce.”

The order of contempt which was rendered subsequent to the motion for nonsuit was held void and Norton was discharged.

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

Seemingly the prosecution of a cross action in a statutory ouster suit is a procedure without precedent. Counsel has cited, and we have found, no reported case in which a cross action was considered in connection with an ouster suit brought under the Texas Constitution and statutes. When we consider the nature of the remedy which, as above pointed out, is a remedy prosecuted by the State in its sovereign capacity, it is difficult to imagine a set of circumstances under which a cross action would properly lie³ except perhaps where it was shown that the district attorney had clearly abused the discretion vested in him by law and repeatedly filed and dismissed ouster suits against a defendant for the purpose of harassment so as to make applicable the rule announced by this Court in University of Texas v. Morris, 162 Texas 60, 344 S.W. 2d 426. It is one thing to attack the discretion of the district attorney in taking one nonsuit, and another thing when it appears that repeated nonsuits have been taken as to suits based substantially upon the same state of facts. It further seems that the remedy in case of the filing of repeated vexatious lawsuits does not lie in preventing the taking of a nonsuit or the reinstating of dismissed causes but rather in the preventing of the filing of another suit. The ouster statutes provide a safeguard against the repeated filing of vexatious suits in that Article 5979 provides that after an ouster petition is filed, an application for citation shall be made to the district judge who shall either order the issuance of citation or refuse to do so. In the event the latter action is taken, the statute directs that the “petition shall be dismissed.” Whether an exclusive remedy lies with an attack upon the discretion of the district judge in permitting citation to issue upon a vexatious suit, i.e., one that has been repeatedly filed, or an injunction could issue in another suit is a question which is not presented by the record before us.

The nature of the ouster suit is such that ordinarily it admits of no cross action. There is no statutory provision for a cross action. The proceeding is quasi criminal in nature, State v. Reyna, 160 Texas 404, 333 S.W. 2d 832, and it would seem that the only issue presented would be whether or not the defendant were guilty of the charges brought against him. This issue is to be determined by a jury under a general charge. The cross action here involved consists in little more than the affirmative assertion of a defense under Article 5986 which provides that “No officer in this State shall be removed from office for any act he may have committed prior to his election to office.” Reeves v. State, 114 Texas 296, 267 S.W. 666; In re Laughlin, 153 Texas 183, 265 S.W. 2d 805, 348 U.S. 859, 75 S. Ct. 84, 99 L. ed. 677. In our opinion the assertion of this cross action, or any amendment thereto,⁴ could not operate to deprive the district attorney of his control of the statutory ouster suit nor serve as a basis for the reinstatement of a suit in which he had taken a voluntary nonsuit.

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

In Caruthers v. Harnett, 67 Texas 127, 2 S.W. 523, the appellant, county treasurer of Presidio County, brought an action alleging inter alia that defendants, members of the county commissioners’ court, had issued bonds to pay for the erection of a courthouse and jail at the new county seat, and that some of these bonds had been presented to him for registration. He had refused to register the bonds for stated reasons and alleged that he feared that the commissioners’ court would seek to remove him from office because of his refusal to register the bonds. The prayer was for an injunction to restrain the commissioners from interfering with the appellant’s office or official records. The trial court denied the injunction, finding that appellees had no intention of interfering with appellant’s office or the public records in his charge. This was affirmed on appeal.

Although respondent cites this case for the general proposition that a public official may seek an injunction against anyone attempting to remove him, the following language in the opinion clearly distinguishes the case from the present situation:

“There can be no doubt that a district court has power to issue an injunction to restrain the illegal seizure or use of the books and papers pertaining to any public office; and it would seem not only the right, but also the duty, of any public officer intrusted with the records, books, and papers of his office affecting his own right, as well as the public welfare, to protect them from an illegal seizure or use; and to do this, if necessary, he may ask the interposition of a court of equity. The relief sought by the appellant brings him within this rule, in so far as he asks that the defendants be enjoined from seizing and carrying away the records, books, and papers pertaining to his office of county treasurer.” (Italics supplied.)

The three Callaghan cases by the San Antonio Court of Civil Appeals (Callaghan v. McGown, 90 S.W. 319; Callaghan v. Tobin, 90 S.W. 328; and Callaghan v. Irvin, 90 S.W. 335, wr. ref. in all cases) are likewise of little value to respondents. This language from the Tobin case describing the nature of the suit is typical of all three cases and demonstrates that they are not in point here:

“In this suit the petition alleges the case of an officer duly appointed, and in lawful possession of the office, and property appertaining thereto, to which he was appointed by lawful authority, and the threatened interference with him in such possession and his removal therefrom by persons alleged to have no legal authority therefor and having no title to the office.” (Italics supplied.)

In Ehlinger v. Rankin, Texas Civ. App., 29 S.W. 240, no writ hist., it was held that a temporary injunction could be obtained by the legally elected county clerk to prevent an appointed successor from carrying out the duties of the office without a judicial determination that he (the elected clerk) was not qualified to hold the office. The question was whether the elected clerk had vacated his office under Article 16, Sec. 14 of the Texas Constitution relating to the residence qualifications of civil officers. The Court merely held that this question must be determined by a district court rather than the commissioners’ court.

Stockwell v. Parr, Texas Civ. App., 319 S.W. 2d 779, involved a dispute between claimants to an office and is not in point here. Moreover, the judgment in that case was subsequently-vacated and the opinion therefore lacks precedential value. Parr v. Stockwell, 159 Texas 440, 322 S.W. 2d 615.

The present cause is in no sense a suit for office between contesting claimants to the title to such office. The cause out of which the present proceedings arose is a statutory ouster suit in which it is contended that a duly elected official should be removed from office because of official “misconduct”. Article 5973.

We hold that the order purporting to reinstate Cause No. B-77,303 on the docket of the 60th District Court dated June 6, 1962, and the injunctive ancillary orders contained in the decree bearing said date are nugatory and void for the reasons herein set forth and should accordingly be expunged from the records of said 60th District Court.

The appeal from the temporary injunction which the State took to the Court of Civil Appeals from the injunctive order restraining Richard E. Culbertson from acting as sheriff is inadequate to grant the State the relief to which it is entitled. The Court of Civil Appeals in passing upon the question of whether the trial judge abused his discretion in granting the temporary injunction may or may not pass upon the basic order which purports to reinstate Cause No. B-77,303 upon the docket of the 60th District Court. This is the order which brings about the seeming jurisdictional conflict between two co-ordinate courts and is the order together with its incidental injunctive provisions which the State is entitled to have expunged from the record.

We assume that the judge of the 60th District Court will comply with the holdings of this Court herein set out and expunge the order of June 6, 1962 from the records of his Court. In the event he should not so proceed, a writ of mandamus will issue. Lord v. Clayton, 163 Texas 62, 352 S.W. 2d 718.

No motion for rehearing will be entertained.

Mandamus conditionally granted.

1 . Subsequent to the filing of this suit, W. C. Lindsey was appointed Criminal District Attorney of Jefferson County and has joined in these proceedings. Article 52-160b, Vernon’s Ann. C.C.P.

2 . Regular Judge of the 114th Judicial District, sitting for the Honorable Harold R. Clayton, Judge of the 136th Judicial District who had recused himself.

3 . While the factual situation in Anderson, Clayton & Co. v. State, 122 Texas 530, 62 S.W. 2d 107 is wholly different from that now before us, it should be pointed out that an exception to the' rule that the State, having invoked the jurisdiction of a court to determine a civil cause, may be held to answer on a cross action is recognized where “exemptions inherent in sovereignty” are involved. See, State v. Humble Oil & Refining Co., 141 Texas 40, 169 S.W. 2d 707.

4 . It is undisputed that the two ouster suits mentioned are the only ones that have been filed by the district attorney against Meyer. It therefore appears that no allegation of repeated filings and dismissal can be made.