                       OFFICE   OF THE ATTORNEY    GENERAL     OF TEXAS
.
                                          AUSTIN

    -c.-
    --.-



           ~o;crable' Robert F. P&en,     Jr.
           county Attoriloy
           ~ata~:orda County
           COYCity, Texas

           :ear sir:




                                                   authority   to ron-




                                    11 be seeen t&it,. in the case Y:Q
                                     the Sm*iay upon v;hich the pro-
                                                  tad w;:as in the very

                 Sunday i3zgediutely follo~?:ing or sucoccdi>g     tho
                 0xpiratIon  of the roguli-r tom,
                       w>ioithr:l* or the st:i,tuteo above quoted - and
                 via baliova t'hey cre all the lnvr enuctcd in this

                         ..
,orable Robert F. Pedon,      Jr.,   PaSo 2


  state bearing directly        upon the oubject - tend
  to throw sny light upon the quastlon before
        We turn, therefore,       to the oommon law,
  %ause      our statute    further provides that
  Menover      it is found that this Co:e fail:
  to provldo a rule of procedure in any psrtiou-
  lar atate of case whioh may arise,        and is,
  therefore,     defeative,   ths rules or the com-
  mon lax shall be applied and govern.’         Past.
  Dig. 8 Art, 2493,
         ‘“The subJect is thoroughly         and ably dis-
   cussed in Baxter v. The People, 3 Ill.             (Gilm.)
   384, 385, -3’e            take the liberty      of quot-
   i’ng’fully from the opinion of Caton, J., de-
   livered in that case,          He says:     *Had tho
   court the rim        to receive      the vcrdiot   and
   pivnounoo judgment .on Sunday? That courts
   ha-fe no right to pronounce a judgment, or do                ~.
   any~other- aot strictly        judicial,    on Sunday,
   unless expressly        authorized by statute,
   aeems to be too well settled           to admit of
   doubt. bv the decisions          in En&and and in
 . this country.       The leading      oaee on this sub-
   ject is that of Sv.xnn v. ilroxn, 3 Burr,. 1595,
  where it was helwthe               court of Kina’s
   Benoh that the court o ouldnot sit on Sunday
   and give a valid: ju-?gment, it not being a
   judicial    day.    It appears that anoiently,
   among Christians,        courts did sit on Sunday,
   but by a canon of the church made in the year
   517 this was prohibited,          and that rule seems
   to have been adopted into the common law, and
  may be considered well settled.              Put this
   prohibition     seems to be confined to the enter-
   ing of judgments of record,           and other like
   judloinl    acts, for vie learn from the opinion
   of lord Uansfiold        in the same case that it
  wss assigxd       for error in th’e cxohoqitier that
   the information       (for engro-sing     butter and
   cheese contrary to the stztutc) wcs orhibitcd
   to the court on the 13th day of October,
Rcsorable     Robert 1. Peden,     Jr.,   Page 3


     which in the year (20 Jac. 1) was on Su$y,
     and; therefore,      not *dins .iuridicus.”
     question seems to have bean frequently           before
     the English courts and the courts of zest of
     the statpa of the Union, and the doclsions
     are very uniform that. a judgment cannot be
     entered of record on Sunday.         3 Thomas’ Coke.
     354; 2 21. COQ. 277; t~acke~.da~~is *,           5 Coke,
     66;   Pearce v. Xtvmod, 13 [<ass. 324; Chapmn Y.
     Tne %tat3, 5 Bm            (Ind.) 111; N-lbors v.
     The :X&o,      6 Ala. 290; 4 N, 11. 15S;*Authut v.
     ?o;b;,;~2Rbb;.;89;       Stor:r v. Fllott,     8 Lo\..
                            To thzse authorities      we say
     a2d Col?nan v, l?!cnCerscri, Litt,     (Xy. ) &l., Gas.
     171;mrxcrker           v. The People,    5 i;‘end. 530;       -
     Rarpor. v, T’?e htz=t9, ?.+3Texas, 431.
               Vh3se cases all s-how that a ju:&zatit~
         entered of rcocrd on Sunday is .not only erro-
         neous, but is absoiutely  void.
                *But although the law am=19 to be nell
         settled   th?it a judgmnt caimot be entered Of
         record on Sundey, yet I think It equally well
         nettled thzt a verdict    of a jury aay be enter-
         ed of record on Suadu~.     See i’ollfYiIin~ authori-
         ties:    Heidkcppw v. Cotton, 3 Xass. 55; mhtaling
         v. Csbom, 15 Johns. 118. ILtll::>r v. ?nPlisn,
         i6;s         (5. c.) 586; &    v. Phlnl~Xs.
              .
               Via verdict of’ the jury nay be returned
         and r.ecoived on Sunday.  cOy;l: v. Silcox_, 5 Ind.
         370; ?,o:: :er y. XCCOll~,   9 h3,    587; ::ccork&
         y. The Etste, 14 In&. 39; &          Y. The i;ta.te,
         14 In;\. 135; Zebbor v. &mill,         34 N. ri. 202;
         Robsrts V. G-3,     5 xun?FEX.        ), 558.
               “;‘ie fully OGilCUr in t.he’conclusion   BY-
         rived at by the lccrnefi    judee in Baxter v.
         Th Pro::le, cxplocsed     in thcso xo:ordr;- “;le
         think t&c authGriti*-n clearly      establish   th::t,
         ~AXUIa cause is fxtriitted     to the jury before
         twelve of clock 5aiurday nQht,       the vcrdiat     of

    L.         ,   .     J   .
                   .
 I
 1                                                                      ‘.   .A*/:



       Honorable Robert F, Poden,      Jr.,   Page 4

.I .       tho jury may be received      03 Sunday; but that
           it 10 not a judicial   day for tha purpose of
           rendorinf! any judgment, and if it attempt
           to render a judment,     still   in law it would
           be no judgment, but absolutely      void, and
           will he so declared,   and my be revsrsed by
           this oourt.   Not that euch reversal will take
           tram it any force or vitality,      for ltmvar
           had any, not having been rendered by a court
           having authority   to render any udment
           whatever at this ti.me.1 ,.Ib. 38 i! ."
                  The .Shearman case, supra, has been followed by the
       Texas Cotit of Criminal Ap eals in tha reoent casea .of Bless
       V, State, (19344) 75 S..W. T21%) 694 and Guerra v. State,
       (1939) 136 Texas Crlrnlnal Reports 412.   i’lo quote from the  .. .
       court’s  opinion in tho Guerra case a8 follbwsr
                  “It appe&s t rom bill       of oxcopt ion No.
            1; that the court char&i         the jury on Sun-
            .day, &roh .6, 1938, at lr53 P,hL            Cho.r&ing
            theJury is strictly     a judicikl      act.    Xoss
            '9, State,  173 S. Yf. 859. Courts havo no
            right to profiounce a judgment; or do any
            other act striotly     judlaial.,    on Sunday, In.
            the absence of a pemisoive          otutute.     Blono
            V, State, 75 S. W. (Zd) 694; Shearman v.
            St&e,    1 Tex. App. 215,      Xe have in this
            state no statute pemltting         the jury to be
            charged on Suncay.      In Moos0 v, Stato, su;rra,
            the oourt said:     ‘Char&n% the jury is Q
            high judicial   function,    cm1 it cannot be
            lawfully exercisea    on Sundtiyrt Ye are con-
            strafnod to hold that reversible          error 1s
            presontca.*F
                  You arc respeotfully  a&vi~;cd that it is the opin-
       ion of this deprultmsnt that pleas of E;uilty aoceptad ana
       jU3gien~ts rendered on Sundays .fn misdomanor cases are In-
       valid.




 !
