                                                             ERAL,



                              AUSTIN.     TEXAS      78711
CRAWFORD       C. MARTIN
  ATTORNEY     GENIERAL


                              September 17, 1969


           Honorable Sam I,.Gayle, Jr.             Opinion No. M- 473
           County Attorney
           Jackson County                          Re:   Whether, under the facts
           Edna, Texas                                   submitted, a County Judge
                                                         is disqualified from pre-
                                                         siding at condemnation
                                                         trials and related ques-
           Dear Mr. Gayle:                               tiorls.
                     In your request for an opinion from this office, you
           submit the following facts:
                     “The County Judge of Jackson County has
                refused to preside at condemnation proceedings
                in this County. A special judge has been ap-
                pointed to preside at these hearings by consent
                of the parties and County funds are being used
                by order of the Commissioners Court to pay said
                special judge. This payment together with the
                court order for same, is evidenced by the en-
                closed photo-copy. Ih no condemnation case
                which I have reference to have the parties
                thereto objected to the regular County Judge
                presiding or has any hearing been held and it
                determined therein that the said Judge is dls-
                qualified by law.
                     “Further, in none of these cases does it
                appear that the County Judge is disqualified
                to serve by reason of either kinship to the
                parties, an interest in the subject matter of:
                the suit, or has he been of counsel therein.

                     With regard to these facts, you ask the following
           questions, which we quote as follows:
                     “(1) Is the County Judge disqualified
                from presiding at condemnation proceedings by
                reason of his appointment of special commis-
                sioners to assess damages in said cases?

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Hon. Sam L. Gayle, Jr., page 2    (M-473)



          "(2)    Does any case, statute, or law per-
     taining to   this State allow the County Judge to
     disqualify   himself from presiding on condemna-
     tion cases   when he is not legally disqualified?

          “(3)  Can County Funds be expended to pay
     a special County Judge who has been appointed by
     consent of the parties to preside at condemna-
     tion proceedings when the regular County Judge
     is not legally disqualified from presiding at
     said condemnation proceedings In County Court?"
          Section 11, Article V, Constitution of Texas, provides,
in part, as follows:
         "No judge shall sit in any case wherein
    he may be interested, or where either of the
    parties may be connected with him, either by
    affinity or consanguinity, within such a
    degree as may be prescribed by law, or when
    he shall have been counsel in the case. . , .'
          In reference to this constitutional provision, it is
stated in 33 Tex.Jur.2d, 391-392, Judges, g27, as follows:
          1,
            . . .These inhibitions are not only
     mandatory, they are exclusive;  that *a, they
     specify all the circumstances that forbid a
     judge to sit. Thus, a judge is not disqualified
     because of bias or prejudice, because of pre-
     vious rulings made by him, nor because 2f in-
     ability to attend to his duties. . . .
          Thus, where It is not shown that a County Judge has
any interest in a county condemnation proceeding other than as
a taxpayer and as a member of the Commissioners Court, the
County Judge's interest in the case Is not sufficient to con-
stitute the disqualiflcatlon of the Judge to appoint commis-
sioners to assess damages or to preside at the trial. Gossett
v. State, 417 S.W.2d 730 (Tex.Civ.App. 1967, error ref.'m,
  d the authorities therein cited    Therefore, in answer to your
%rst question, you are advised that under the facts submitted,
It is our opinion that by reason of the provisions of Section 11,
Article V, Constitution of Texas , and the holding In Gossett v.
State, supra, the County Judge is not disqualified from presidi
-condemnation   cases by reason of his appointment of special c:E-
missioners to assess damages in said cases.


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.    .




    Hon. Sam L. Gayle, Jr., page 3 (M-473)


              The County Judge and County Court of Jackson County
    have jurisdiction over matters of emlnent domain as provided
    in Articles 1959, 1960 and Articles 3264-3271, Vernon's Civil
    Statutes. Therefore, in answer to your second question, you
    are advised that it is our opinion that in the absence of
    legal disqualification, the County Judge as presiding officer
    of the County Court, has a duty to preside In condemnation
    cases in Jackson County.
              We have found but one occasion on which the parties
    to a suit may, by consent, appoint a proper person to try a
    case. This occasion arises only when the regular Judge is
    legally disqualified. It Is evident from the facts submitted
    that the parties purported to appoint a special judge under
    the authority of the provisions of Section 16, Article V,
    Constitution of Texas, and Articles 1930, 1933 and Article 3266.
              Since we have concluded that the County Judge is not
    legally disqualified from presiding in condemnation cases in
    Jackson County, it Is therefore our opinion that the purported
    appointment of a special County Judge by consent of the parties
    under the facts submitted was without legal authority and was
    Invalid. However, under the facts submitted, a special County
    Judge could have been selected under the provisions of Article
    1934, Vernon's Civil Statutes. This Article reads as follows:
              "If a county judge fails to appear at the
         time appointed for holding the court, or should
         he be absent during the term or unable or un-
         willing to hold the court, a special county judge
         may be elected in like manner as is provided for
         the election of a special district judge. The
         special county judge so elected shall have all
         the authority of the county judge while in the
         trial and disposition of any case pending In
         said court during the absence, inability, or
         such refusal of the county judge. Similar
         elections may be held at any time during the
         term, to supply the absences failure or in-
         ability of the county, or any special judge,
         to perform the duties of the office. When a
         special county judge shall have been so elected,
         the clerk shall enter upon the minutes of the
         court, a record such as is providzd for In
         like cases in the district court.
    The manner of election of a special County Judge specified in
    Article 1934 is provided for in Articles 1887-1893, Vernon's
                                - 2361-
Hon. Sam L. Gayle, Jr., Page 4 (M-473)


Civil Statutes.
          The Commissioners Court of Jackson County would
have been authorized to compensate a special County Judge
elected under the statutory provisions, supra, by the au-
thority of Articles 1933 and 6821, Vernon's Civil Statutes.
However, there is no authority for the Commissioners Court
to order compensation of a special County Judge selected
by agreement of the parties to a case when the regular County
Judge is not disqualified by law to preside over condemnation
cases. The courts of Texas have repeatedly held that county
commissioners' courts may exercise only such authority as is
conferred upon them by the Constitution and statutes of this
State, either by express terms or by implication. Art. V,
Sec. 18, Constitution of Texas; Bland v. Orr, 90 Tex. 492,
39 S.W. 558 (1897); Roper v. Hall, 280 S W 289 Tex.Civ.App.
1925.
 _ -. no writ): Landman v. State, 97 S.W:2d 264 Tex.Clv.App.
1936, error ref.)XZI- Paso County v. Elam, 106 S.W.2d 393
(Tex.Civ.App. 1937, no wr: ;       V. Sterrett, 252 S.W.2d
766 (Tex.Civ.App. 1952, error ref. n.1r.e.j.

          Consequently, in answer to your third question, it
Is our opinion that in view of the foregoing authorities the
Commissioners Court of Jackson County was not authorized to
order the expenditure of county funds to pay the appointee
who has presided in these cases by consent appointment of the
parties.
                    SUMMARY
         Under the provisions of Section 11, Article
    V, Constitution of Texas, and the holding in
    Gossett v. State,       -the County Judge, in
    view of the facts =F?
                      su m tted, is not disqualified
    from presiding at condemnation cases by reason
    of his appointment of special commissioners to
    assess damages in said cases.
          The purported appointment of a special county
     judge by consent of the parties under the facts
     submitted was without legal authority and was in-
     valid. However, under the facts submitted, a
     special County Judge could have been selected
     under the provisions of Article 1934, Vernon's
     Civil Statutes.



                           -   2362   -
Hon. Sam L. Gayle, Jr., Page 5 (M-473)


          The Commissioners Court of Jackson County was
     not authorized to order the expenditure of county
     funds to pay the special County Judge, who was
     purportedly appointed by consent of the parties
     to preside in condemnation cases in Jackson County.
                              Ver



                                             eneral of Texas

Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION CONMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bill Craig
Lonny Zwiener
Bill Allen
Monroe Clayton
HAWTHORNE PHILLIPS
Executive Assistant
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant




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