State v. Preslar

GONZALEZ, Justice,

concurring.

I concur in the court’s judgment, but do not agree that the original assignment of Judge Preslar was invalid. I also believe that the objection statute was not repealed and that it is constitutional.

Judge Preslar is a retired appellate judge. When dealing with the assignment of retired appellate judges to district courts, it has been the practice of the presiding judges of the judicial administrative regions to: (1) determine the availability of the retired appellate judge; (2) recommend the assignment to the Chief Justice of this Court; and (3) request the Chief Justice to execute the assignment. In this particular instance, Judge Paxson determined the availability of Judge Preslar and recommended his assignment to ex-Chief Justice Hill. I therefore agree with the Bank’s assessment that the assignment of Judge Preslar was the joint act of Judge Paxson and the Chief Justice of this court.

However, I also agree with the Land Commissioner that Tex.Gov’t Code Ann. § 74.053 (Vernon 1988) permits the parties to this litigation to object to the assignment. The legislature did not repeal this statute during the last legislative session.

The Bank argues that even if the objection statute has not been repealed, it is nevertheless unconstitutional under Article V, Section 11 of the Texas Constitution, which provides three grounds for the disqualification of a judge. The Bank submits that a retired judge who has chosen to remain a judicial officer subject to assignment, is a “judge” for all purposes under Article V, Section 11 of the Constitution and can be disqualified for only one or more of the three reasons set forth in the Constitution. The Bank concludes that the objection statute is unconstitutional because it permits a party to disqualify a judge for reasons not expressed in the Constitution. I disagree.

“The Constitution is to be construed as a whole, so as to give effect to every provision, and, if possible, to harmonize them.” Texas National Guard Armory Board v. McCraw, 132 Tex. 613,126 S.W.2d 627, 634 (1939). See also Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 137 (1931). Furthermore “[i]t has long been the policy of the courts of this State to construe liberally constitutional provisions directing the action of legislatures, so as to carry out the purposes for which such provisions of the Constitution were adopted.” McCraw, 126 S.W.2d at 634. When those provisions address the same subject matter, as in this case, they must be construed in light of each other. Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 13, 15 (1931).

Applying these rules of constitutional interpretation, I believe the objection statute does not create any additional grounds for disqualification in violation of Article V, Section 11 of the Texas Constitution. While the legislature was ill-advised in its choice of the word “disqualified,” the statute does not create additional grounds for the disqualification of judges in contravention of Article V, Section 11. Instead, as part of the Court Administration Act, now codified in the Government Code, it is con*485stitutional by virtue of Article Y, Section l-a(l) of the Texas Constitution, which provides: the Legislature shall provide for the retirement and compensation of Justices and Judges of the Appellate Courts and District and Criminal District Courts ... and for their reassignment to active duty where and when needed....”

This constitutional provision grants the legislature the authority to reassign retired judges to active duty and to create an administrative system to accomplish this purpose. Section 74.053 of the Government Code, allowing each party one opportunity to remove a visiting judge, is simply a part of the administrative scheme and, as such, a part of the selection process for a visiting judge.

The Land Commissioner made a timely objection to the assignment, as authorized by law, and such objection was adequate to remove the assigned judge from further participation in the case. Therefore, I concur in the judgment of the court.