State v. Preslar

RAY, Justice,

concurring.

I agree that the assignment of Judge Preslar by the Chief Justice did not comport with the applicable provisions of the Government Code and should be declared void. Had the court confined itself to this one controlling issue, I would not be compelled to write. Instead, the court ventures into what it perceives to be the “legislative history” surrounding the amendment and ultimate repeal of the objection statute. The vice in all this, apart from its obvious nature as dicta, is that the court substitutes its rationale of what the legislature must have intended for the consequences of what the legislature plainly did. Actions speak louder than words and here we do not even have words; only the active imagination of the court and what it deduc*484es must have transpired during the 70th legislative session.

Tracing the actions of the 70th Legislature with regard to the three bills which touched the objection statute, the following was clearly accomplished. First, the Legislature codified the objection statute in section 74.053 of the Government Code, transferring it from section 4.013 of the former Court Administration Act. Next, the Legislature amended the objection statute by amendment of section 4.013 of the Court Administration Act, which in turn by operation of the codifying bill transferred the amendment into section 74.053 of the Government Code. Finally, the Legislature repealed section 4.013 of the Court Administration Act which likewise by operation of the codifying bill repealed the corresponding section of the Government Code. In the final analysis the legislature plainly repealed the objection statute in its entirety, leaving the parties to the litigation without a basis for objection to a visiting judge under Chapter 74, subchapter C of the Government Code.