ERAL, 

CRAWFORD C. MARTIN 

AUSTIN. TEXAS 78711 

ATTORNEY GENIERAL 

September 17, 1969 

Honorable Sam I,. Gayle, Jr. 

County Attorney 

Jackson County 

Edna, Texas 

Opinion No. M- 473 

Re: Whether, under the facts 

submitted, a County Judge 

is disqualified from preat condemnation 

and related quessiding 

trials 

Dear Mr. Gayle: tiorls. 

In your request for an opinion from 

submit the following facts: 

this office, you 

“The County Judge of Jackson County has 

refused to preside at condemnation proceedings 

in this County. A special judge has been appointed 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 enclosed 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 dlsqualified 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 commissioners to assess damages in said cases? 

- 2359 - 
Hon. Sam L. Gayle, Jr., page 2 (M-473) 

"(2) Does any case, statute, or law pertaining to this State allow the County Judge to 

disqualify himself from presiding on condemnation 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 condemnation 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 previous rulings made by him, nor because 2f inability 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 constitute the disqualiflcatlon of the Judge to appoint commissioners 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 

%rst question, you are advised 

Therefore, in answer to your 

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:Emissioners to assess damages in said cases. 

- 2360- 
. . 

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 unwilling 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 inability 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 authority 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 

1925. no writ): Landman v. State, 97 S.W:2d 264 

Tex.Civ.App. 

_ -. Tex.Clv.App. 

1936, error ref.)XZI- 

(Tex.Civ.App. 1937, no wr: 

766 (Tex.Civ.App. 1952, error ref. n.1 

Paso County v. Elam, 106 S.W.2d 393 

; V. Sterrett, 252 S.W.2d 

r.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, 

=F? 

-the County Judge, in 

view of the facts 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 invalid. 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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