ERAL,

CRAWFORD C. MARTIN AUSTIN. TEXAS 78711

ATTORNEY GENIERAL
September 17, 1969

Honorable Sam I,.Gayle, Jr. County Attorney Jackson County Edna, Texas OpinionNo. 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

“TheCounty Judge of Jackson County has refused to preside at condemnationproceedings in this County. A special judgehas been appointed to preside at thesehearings by consent of the parties and County funds are beingused by order of the CommissionersCourt to pay said special judge. This payment togetherwith the court order for same, is evidencedby the enclosedphoto-copy. Ih no condemnationcase 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 dlsqualifiedby law. “Further,in none of these cases does it appear that the County Judge is disqualified to serveby reason of either kinship to the parties, an interest in the subjectmatter 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 presidingat condemnationproceedingsby 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 caseswhen he is not legallydisqualified? “(3) Can County Funds be expended to pay a specialCounty Judge who has been appointed by consent of the parties to preside at condemnation proceedingswhen the regular County Judge is not legallydisqualified from presidingat said condemnationproceedings In County Court?" Section 11, ArticleV, Constitutionof Texas, provides, in part, as follows:

"No judge shall sit in any casewherein he may be interested,or where either of the partiesmay be connectedwith him, either by affinity or consanguinity,within such a degree as may be prescribedby law, or when he shall have been counsel in the case. . , .'

In reference to this constitutionalprovision, it is stated in 33 Tex.Jur.2d, 391-392,Judges, g27, as follows:

1,

. . .Theseinhibitionsare not only mandatory, they are exclusive; that *a, they specifyall the circumstancesthat forbid a judge to sit. Thus, a judge is not disqualified because of bias or prejudice,because of previous rulingsmade 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 condemnationproceeding other than as a taxpayerand as a member of the CommissionersCourt, the County Judge's interest in the case Is not sufficient to constitute the disqualiflcatlonof 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, ArticleV, Constitution of Texas, and the holding In Gossett v. State, supra, the County Judge is not disqualified frompresidi -condemnation cases by reason of his appointment of special c:Emissioners 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 jurisdictionovermatters of emlnentdomain 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 legaldisqualification, 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 suitmay, by consent, appoint a proper person to try a case. This occasionarises only when the regular Judge is legallydisqualified. It Is evident from the facts submitted that the parties purported to appoint a special judgeunder the authority of the provisions of Section 16, ArticleV, Constitution of Texas, and Articles 1930, 1933 and Article 3266.

Since we have concluded that the CountyJudge is not legallydisqualified from presiding in condemnationcases 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 submittedwas without legal authority and was Invalid. However, under the facts submitted,a special County Judge couldhave been selectedunder the provisions of Article 1934,Vernon's Civil Statutes. This Article reads as follows:

"Ifa 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 likemanner as is provided for the election of a specialdistrict judge. The special county judge so elected shallhave all the authority of the county judgewhile in the trial and disposition of any casepending In said court during the absence, inability, or such refusal of the county judge. Similar electionsmay 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 shallhave been so elected, the clerk shall enterupon theminutes of the court, a record such as is providzd for In like cases in the district court.
The manner of election of a specialCounty 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 CommissionersCourt of Jackson Countywould have been authorized to compensatea special County Judge electedunder the statutoryprovisions, supra,by the authority of Articles 1933 and 6821, Vernon's Civil Statutes. However, there is no authority for the Commissioners Court to order compensationof a special County Judge selected by agreement of the parties to a casewhen the regular County Judge is not disqualifiedby law to preside over condemnation cases. The courts of Texas have repeatedly held that county commissioners'courtsmay exercise only such authority as is conferredupon them by the Constitutionand statutesof 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 foregoingauthorities the CommissionersCourt of Jackson Countywas not authorized to order the expenditure of county funds to pay the appointee who has presided in these cases by consentappointment of the parties.
SUMMARY

Under the provisions of Section 11,Article V, Constitutionof Texas, and the holding in Gossett v. State, =F? -the CountyJudge, in view of the facts sum tted, is not disqualified from presiding at condemnationcases by reason of his appointment of special commissionersto assess damages in said cases. The purported appointment of a special county judge by consent of the partiesunder the facts submittedwas 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 CommissionersCourt of Jackson Countywas not authorized to order the expenditure of county funds to pay the special County Judge,who was purportedly appointedby consent of the parties to preside in condemnationcases in Jackson County.

Ver

eneral of Texas Preparedby 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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