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VII. Analysis of the Smith opinion
from Appellate Seminar
by TCDLA
As the foregoing provision explains, the elected district judge is the person who
can act for a district court. This is the general rule. The last sentence contains an
exception. The exception is that the Legislature can provide for the holding of district
court when the elected judge is absent, disabled, or disqualified from presiding.
III. The Legislature has provided for someone other than the elected district judge to preside over a district court. But the statute is overly broad.
As envisioned by our Constitution, the Legislature has passed a statute
authorizing someone other than the elected district judge to exercise a district court’s
power. That statute is Section 74.056 of the Texas Government Code. The apposite
portion of Section 74.056 is Subsection (a) which reads as follows:
A presiding judge from time to time shall assign the judges of the administrative region to hold special or regular terms of court in any county of the administrative region to try cases and dispose of accumulated business.
There is no doubt that Section 74.056(a) allows for the appointment of a visiting
judge when the elected district judge is absent, disabled, or disqualified. But there is a
problem with the statute. It is overly broad. The statute does not limit the appointment
of visiting judges to the circumstances spelled out in Article V, Section 7. Instead, the
statute permits the appointment of a visiting judge “to try cases and dispose of
accumulated business.” There is absolutely no requirement that the elected district
judge be absent, disabled, or disqualified. For this reason, Section 74.056(a) is
unconstitutional.5
Because Section 74.056(a) operates unconstitutionally, the appointment of the
visiting judge is invalid. All actions of the visiting judge are done without authority. In
other words, the visiting judge’s actions in handling a case and signing off on a
conviction are ultra vires. Accordingly, the conviction cannot stand.
IV. The framing of the issue. The issue arising from this argument has been framed as follows: The Constitution directs district judges to exercise district courts’ judicial power. The Constitution authorizes the Legislature to allow others to exercise that power when the district judge is absent, disabled, or disqualified. A Texas statute permits assigned visiting judges to act for district judges in handling a district court’s accumulated business. Does the statute operate unconstitutionally if a visiting judge acts for a district court and the district judge is not absent, disabled, or disqualified?
5 The statute is not unconstitutional on its face. This is because, the statute authorizes the appointment of a visiting judge when the elected district judge actually is absent, disabled, or disqualified. But the statute is “unconstitutional as applied” in situations in which the district judge is not absent, disabled, or disqualified. In Harris County, visiting judges are routinely appointed without regard for whether the district judge is absent, disabled, or disqualified. The typical Harris-County appointment is “for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.” Generally, the appointment orders do not say anything regarding the availability of the elected district judge. The appointment of visiting judges to handle cases is just a routine part of the justice system in Harris County.
V. The issue has been advanced three times.
This issue has been advanced in three separate appeals. The three appeals are
as follows:
(1) Keith Smith v. State, No. 01-19-00422-CR;
The issue was first rejected in the Smith case.6 Later, the issue was scorned in the
Wiggins case.7 And finally, the issue was rebuffed in Lazarine.
8
VI. The Smith Opinion
The First Court of Appeals was the first appellate court to consider this
argument. In a unanimous opinion, the Court found the argument “to be without
merit.” But there is certainly room for a bit of disagreement with that finding. The
Court said:
Smith's argument assumes that Article V, section 7 requires any statute enacted by the Texas Legislature, authorizing the assignment of judges to district courts, to include a requirement that the elected district court judge be absent, disabled, or disqualified in order for the assignment to be made. An analysis of Article V, section 7 shows that the provision does not contain that requirement.
6 See Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656 (Tex. App.—Houston [1st Dist.] Nov. 17, 2020, pet. ref’d) (mem. op., not designated for publication). 7 See Wiggins v. State, 622 S.W.3d 556 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d). 8 See Lazarine v. State, No. 01-19-00982-CR, 2021 WL 5702182 (Tex. App.—Houston [14th Dist.] Dec.2, 2021, no pet. h.) (mem. op., not designated for publication).
Article V, section 7 states, in pertinent part: “The Legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding.” Tex. Const. art. V, § 7. The plain and literal meaning of the text directs the legislature to enact legislation that provides a means for court to be held when the elected district court judge is absent, disabled, or disqualified. See id. . . . . The interpretive commentary to Article V, section 7 explains the purpose of the constitutional provision: So that absence, disability or disqualification of the judge during the session of the court will not operate to adjourn the court or prevent the holding of the court, the constitution authorizes the legislature to provide for the holding of district court when the judge is absent, or is for any cause disabled or disqualified from presiding.
Tex. Const. art. V, § 7 (interpretative commentary). Both the plain language of the constitutional provision's text and its apparent purpose indicate that the provision was intended to ensure that when a district judge is absent, disabled, or disqualified, court can be held without significant delay or interruption. Nothing in the provision's text, or otherwise, indicates that the legislature lacks authority to enact legislation permitting eligible and qualified judges to be assigned to district courts even when the elected judge of the district court is not absent, disabled, or disqualified. See Dean v. Dean, 214 S.W. 505, 507 (Tex. Civ. App.—1919, no writ) (rejecting appellant's argument that portion of now-repealed statute allowing for election of “special judge” to sit for “regular” district court judge when regular judge is “unwilling to hold court,” violated Article V, section 7 because being “unwilling to hold court” is not among the specified circumstances listed in section 7 and stating, “We do not think that, because the Constitution makes it the duty of the Legislature to provide for supplying the place of the regular judge in certain specified events, it is therefore deprived of the power to so provide in other events”); see also Piersen v. State, 177 S.W.2d 975, 977 (Tex. Crim. App. 1944) (“The Legislature has the power to pass any and all such laws as to it may seem proper, save and except where limited or prohibited
from so doing by the Constitution of this State or by the Constitution of the United States.”). Thus, we hold that Smith has not met his burden to show that Government Code section 74.056(a) is unconstitutional as applied in this case. We overrule Smith's first issue.9
VII. Analysis of the Smith Opinion
The Smith opinion is problematic. The underlined language above acknowledges
exactly what the text of Article V, Section 7 intends. It “intend[s] to ensure that when
delay or interruption.”10 But the Court then says this does not mean the Legislature
cannot provide for the appointment of visiting judges in other circumstances. The
Court does cite an older case for this proposition.
The Smith Court rests its theory on the back of a 100-year-old case from the
Austin Court of Appeals – Dean v. Dean. 11 This is not mandatory authority and there is
considerable precedent undercutting Dean.
In Hill County v. Sheppard, the Texas Supreme Court said:
9 Smith v. State at *5-*6 (emphasis added). 10 See id. 11 The State did not cite Dean. In fact, the State did not take issue with Mr. Smith’s constitutional argument. Rather, the State argued that the record did not show the elected district judge was not absent- disabled, or disqualified. See State’s Appellate Brief in the Smith case at 8 (“The appellant failed to produce a record showing the elected judge was not absent, disabled, or disqualified. So even if those were the only situations where a visiting judge could preside over a trial, the appellant could not overcome the presumption of regularity. This Court should reject his argument without addressing the constitutional claim.”).
