(dissenting).
I respectfully dissent. In my humble opinion, the decision reached by the majority has no legal support. Judge Clyde E. Smith, Jr., was authorized by the Constitution and Statutes of the State of Texas to hear this contempt proceeding.
It is apparent that there are two questions which arise:
1. Was Judge Smith qualified to hear this contempt proceeding, and
*9032. Could he hear it in Hardin County?
I have come to the conclusion, from a careful reading of the relevant constitutional and statutory provisions, that both questions must be answered in the affirmative.
In Tex.Const. art. V, § 11 you will find the following:
“And the District Judges may exchange districts, or hold courts for each other when they deem it expedient, and shall do so when required by law.”
Tex.Rev.Civ.Stat.Ann. art. 1916 (1964) reads as follows:
“A judge of the district court may hold court for or with any other district judge; and the judges of such courts may exchange districts whenever they deem it expedient.”
Tex.Const. art. V, § 7 provides in part as follows:
“The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law.”
Tex.Rev.Civ.Stat.Ann. art. 1919 (Supp. 1974-1975) provides in part as follows:
“Any district judge assigned to preside in a court of another judicial district, or who may be presiding in exchange or at the request of the regular Judge of said court may in like manner hear, determine and enter any such orders, judgments and decrees in any such case which is pending for trial or has been tried before such visiting judge; provided that all contested divorce cases, all default judgments, and all cases in which any of the parties have been cited by publication shall be tried in the county in which filed.” (Emphasis supplied)
The majority practically concedes that Judge Smith had jurisdiction to hear this contempt proceeding under the authority of the Constitution and statutes quoted above and the cases cited in the majority opinion. Nothing more than a request from the regular judge is required for a visiting judge to preside over a case pending or which the visiting judge had tried, and no formal order is required for the minutes. Baldwin v. Leonard, supra; Pendleton v. State, supra. A further remark by Judge Smith, not quoted by the majority, is as follows:
“THE COURT: I would like to point out for the record this case is being tried by myself on request of Judge Walker in writing. . . . ”
This statement alone is sufficient to show Judge Smith had jurisdiction to hear this contempt proceeding.
The primary basis relied upon by the majority as holding the contempt order to be void was the failure of Judge Smith to conduct this hearing in Angelina County.
The majority opinion assumes the case had to be heard by the visiting judge in Angelina County, without giving any authority for such assumption other than art. V, § 7 of the Constitution. However, as quoted above, that article of the Constitution states the court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law. (Emphasis supplied) Then, the statutory provision followed stating divorce cases, default judgments and cases involving parties cited by publication shall be tried in the county in which filed. I don’t see how it could be clearer that all other cases can be heard outside of the county in which the case is filed. A cardinal rule in statutory construction is that courts should ascertain and be guided by the Legislature’s intentions. By naming three types of cases which must be heard in the county in which they are filed, the Legislature in effect expressed its intention to exclude all others. The maxim expressio unius est ex-clusio alterius is applicable here. See Seibert v. Richardson, 86 Tex. 295, 24 S.W. 261 (1893); State v. Mauritz-Wells Co., *904141 Tex. 634, 175 S.W.2d 238 (1943). Peterson v. Calvert, 473 S.W.2d 314 (Tex.Civ.App.—Austin 1971, writ ref’d). City of Dallas v. Yarbrough, 399 S.W.2d 938 (Tex.Civ.App.—Dallas 1966, no writ). A contempt proceeding is not a divorce case; this was not a default judgment, and none of the parties were cited by publication. The judgment granting the divorce became final long ago, and none of the issues there disposed of were being relitigated.
In discussing art. V, § 7 of the Constitution, the majority comes to the unexplained conclusion that for a case to be heard outside of the county seat of the county in which it is pending, the Legislature would be forced to specifically name each type of case which is included in the exception. There is no authority, statutory or otherwise, which supports that conclusion. There is no reason the phrase “except as otherwise provided by law” as used in this constitutional provision should not be given its usual meaning. Nothing more should be required than a clear showing as to the intention of the Legislature. It is noted that even though the majority opinion has been rewritten in part following this dissent, no mention is made of that part of Tex.Rev.Civ.Stat.Ann. art. 1919, § 2 (Supp.1974-1975), which specifically names the case which must be heard in the county in which it is pending.
According to the statement of facts before us, the mother who had been given custody of a minor son was seeking to discover the whereabouts of such son. Judge Smith held the Relator in contempt of court following his refusal to answer a question as to where the son was, after this judge had ordered him to answer the question.
The order holding Relator in contempt, not having been shown to be void, should be enforced. The habeas corpus sought by Relator should be denied, and he should be remanded to the custody of the sheriff of Hardin County where he should be held until he answers the question.