HonorableReubenWlliams Searetaryto 'the Governor Auustin, Texas
Dear Mr. Williams: OpinionNo. O-1586 Ret hthority of Governorto ap- point an attorneyto try a suit where the regularjudge is disqualified.
This departmentacknowledgesreceiptof your letterof the 9th inst., in which you stats,
'Mr. J. F. Hair, Attorneyfor the Plaintiffsin Cause Ho. 62361, the Stata of Texas,et al V. Gulf Pro- duationCompany,at al, pending in the 63rd Judicial DistriotCourt of Travis County,Texas, has requested GovernorO%~nisl to appointa speoialCistrictJudge to presidein said Cause for the reason that all four Judgesin the AdministrativeJudioialDistriot,inolud- ing the presidingJudge beforewhom the ease is pending, are disqualifiedto sit in this case and for the reason that Mr. Hair will not agree upon the appointmentof an attorneyto aat as SpecialJudge.
"Itisoxrr understandingthat under Article 1985, Revised Civil Statutes,1925, the Governoris authorized to designetasome DistrictJudge in an adjoiningdistrict to exchangebentihesand try a aase when the presiding judge has oertifiedhis disqualification to the Govarv:o?. Mr. Bair has taken the positionthat Article 1885 does not apply to thotieoasespendingin a DistriotCourt where thwpresiding Judge of the AZPninistrative Judioi- al Districtis disqualifiedto try the'case. I will appreciatdyour informing'theGovernorwhsthbror not he is authorizedto requestthe Judge beforewhom this cause is pendingto exchangebencheswith a Judge of an adjoiningdistrictto try this case." HonorableReuben Williams,Page 2 (O-1666)
In the ease of Moore v. Davis, 32 S.W. (2) 161 (Cw. App.), it was held that the admi&trative juacial act of the 40th Legisla- ture (Vernon'sArticle 200a) relatingto themsigcwnt of Distriot Judges is annulativeof other statutesrelatingto the ssnw subject. We see, therefore,that it is not necessaryto considerthis act in an-ring the questionpropoundedby you. :
In view of the decisionin the case of Rarrisv. State, 288 S.W. 450 (Courtof CriminalAppeals),i*tll not be neoessary for us to disoussthe questionwhether partiesto the suit by virtue of Arti 5, Section11 of the Constitutionmay agree upon an attom- ey tc try the ease. Your lettar states+hatone of the attorneyswill not agree upon the appointmentof an attorneyto act a8 specialjudge.
This loavesus to a considerationof Article 1665, R.C.S., 1925, which reads as follcwsr
"No changeof venue shall be necessarybecause of the disqualification of a distriotjudge,but he shall immediatelycertifyhis disqualification to the Gcvemor,'whsrauponthe Governorshall designatesome diatriotjudge in an adjoiningdistrictto exchange and try such case or oases, snd he shall notify both of said judgesof such ordersand such judges shall exchangedistrictsfor the purposeof disposingof suoh case or oases, If said judges be preventedfrom exchangingdistricts,the partiesor their counsels ssayagreeupon an attorneyof the court for the trial thereof,and failingto agree, suoh fact shall be certifiedto the Governorby the DistrictJudge,or the specialjudge,whersuponthe Governorshall appoint a personlegallyqualifiedto aot as judge in the trial of the oa8e.s
If the districtjudge beforewhom the oause is pendinghas not certifiedto the Governorhis disqualification, the Governordoes not have authorityto take any actionwhateverwith referenceto the ease. Your letterdoes not statewhetherthe Governorhas reoeiveda certificateof disqualification from the District' Judge.
If the Governorhas reoeiveda oertifiaateof disqualifica- tion from the DistrictJudge,he is not authorizedin the first in- Stan& to appointan attorneyas a specialjudge. See Blanksv. State, 266 S. W. 452 and'Harrisv. State, supra. The Govemor~erely