Petition for Writ of Certiorari — Rutledge v. Rutledge

Supreme Court brief1987

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een

In The

Supreme Court of the United States

October Term, 1986

co)

ROME RUTLEDGE,

Petitioner,

RUTH RUTLEDGE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

t).

BarBara C, CraMPTON

Bar Card No. 05004000

CraMpTon, Crampton & Estrapa

505 Lamar Avenue

Wichita Falls, Texas 76301

(817) 723-9746

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED —

Whether it is a denial of due process or equal protec-

tion of the law under the United States Constitution for

a State Supreme Court to refuse to apply a state consti-

tutional provision expressly calling for a ‘‘twelve’’ man

jury on the grounds that the United States Supreme Court

had declared such a number of jurors was not required

by the United States Constitution?

Il.

Whether a citizen of a state is denied due process or

equal protection by the refusal of a State Supreme Court

to follow its own constitution when the violated provision

of a state constitution had been approved by Congress as

a condition of membership in the Union?

Ill.

When a state constitution affords its citizens greater

rights than the United States Constitution, may those state

constitutional rights be restricted or limited through an ap-

plication of the lesser United States Constitutional rights?

LIST OF PARTIES

Rome Rutledge, petitioner

Ruth Rutledge, respondent

Pursuant to Rule 28.4 (c) the constitutionality of a

State Statute is drawn into question and therefore 28

U.S.C. § 2403 (b) may be applicable. This petition for

Writ of Certiorari is being served on the Attorney General

of the State of Texas.

ill

TABLE OF CONTENTS

Page

Questions Presented i

List of Parties ii

Table of Contents ili

Tahb'e of Authorities iv

Reports of Opinions 1

Jurisdictional Statement 2

Constitutional and Statutory Provisions 0000. 3

Statement of the Case 12

1. Material Facts 12

2. Manner of raising the federal questions ............. 16

Reasons for Granting Writ 18

Petitioner has a due process guarantee of fed-

eral protection of an interest expressly cre-

ated by the Texas Constitution. .....

The incorporation by the Texas Court of the

Sixth and Seventh Amendments to the United

States Constitution and federal case law to

deny Petitioner’s express rights under the

Texas Constitution violated Petitioner’s due

process rights under the United States Con-

stitution.

Congressional approval of the Texas Consti-

tution was a prerequisite to the admission of

Appendix eae ericlrsesieninliak App. 1

Exhibit A—Original Rutledge Opinion ................ App.

Exhibit B—Opinion On First Motion For

Rehearing ....cccccoeen 5 App.

TABLE OF CONTENTS—Continued

Page

Exhibit C—Opinion On Second Motion For

Rehearing ................ App. 11

Exhibit D—Order Overruling Third Motion

For Rehearing .. ‘ App. 18

Exhibit rig On Application For Writ

Of Error .. App. 19

Exhibit F—Ruling On Motion For Rehearing

Of Application For Writ Of Error App. 20

Exhibit G—Article 1970-166d V.A.T.S. 0. App. 21

TABLE OF AUTHORITIES -

Page

CasEs:

Bexar County Hospital District v. Crosby, 320

S.W.2d 247, 253 (Tex. Civ. App.-San Antonio

1958) 13

Carpenter v. Sheppard, 135 Tex. 413, 145 S.W.2d

562 (1940) 15

Carr v. Tucker, 42 Tex. S30 (1ST5) nc cecceeeeeeee 14

City of Amarillo v. Love, 356 S.W.2d 325 (Tex. Civ.

App.-Amarillo 1962), err. ref. mire. ncccceesssssessscsssssseeeesssee 14

Colgrove v. Baltin, 413 U.S. 149 (1973) 20. Semen 12, 13

Collingsworth County v. Allred, 120 Tex. 473, 40

S.W.2d 13 (1931) 15, 16

Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912) ....14, 15

Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147

(1942) 13, 14, 15

Ex Parte Smyth, 56 Tex. Cr.R. 375, 120 S.W. 200

(1909) 15

Farrar v. Bd. of Trustees of Emp. Retirement

System of Texas, 150 Tex. 572, 243 S.W.2d 688

‘fi | y Beepeemunenemsrees 15, 16

Faulder v. Hill, 612 S.W.2d 512 (Tex. Crim. App.

ST abateGnaaoee 13

Ferguson v, Wilcox, 119 Tex. 280, 28 S.W.2d 526

Cs eesatnetearl poe is 15, 16

Holly v. State, 14 Tex. App. 505 (1883) oo. c 15

Holman v. Broadway Improvement Co., 300 S.W.

BD Cem CR. Be. RIE DY saccccietccsietiintinsiseirtnersbocici 14

Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022 (1943)

Jordan v. Crudgington, 231 S.W.2d 641 (Tex. 1950) ..... 12

Keller v. State, 87 S.W. 669 (Tex. Cr. App. 1905)

vil

TABLE OF AUTHORITIES—Continued

Page

Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 221

i __» SR areero errr eare ene ere 14

Leander Ind. Sch. Dist. +. Cedar Park Water Sup.

Core., 479 S.W.2d 906 (Tex. 1972) —____..__ 14

Markowsky et al. v. Newman et al., 134 Tex. 440,

136 S.W.2d 808 (1940) 14

Mills v. Rogus, 457 U.S. 291 (1982) 19

Moore v. Edna Hospt. Dist., 449 S.W.2d 508 (Tex.

Civ. App.-Corpus Christi 1969), ref. mere. 15

Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (19381) .... 15

Paul v. Davie, 424 U.8. 63 (1976) 19

Rawlins v. Drake, 291 S.W.2d 349 (Tex. Civ. App.-

Dallas 1956) 13, 15

Rutledge v. Rutledge, 720 S.W.2d 633 (Tex. App.-

Ft. Worth 1986) ref. n.r.e 13

Williams v, Florida, 399 U.S. 78 (1970) neeccceeccsssecssmesseesnee 12, 13

Wolff v. McDonnell, 418 U.S. 539 (1974) 19

CONSTITUTIONAL PROVISIONS:

United States Constitution:

Fifth Amendment 3

Sixth Amendment 3, 16, 19

Seventh Amendment . sina sinlanicbaneletciciadinbeliohesil 3, 16, 19

Fourteenth Armmemdrme nt oi cecccccecesscsscssesesnecsemsseeennnsseesnsesssnseceen 4

Texas Constitution:

SI TE MEE ssiioezennsatsnsssiniassentinecnselaivintcebndipaiebscateinicanipmaanneanannesantags do, 20

Vii

TABLE OF AUTHORITIES—Continued

Article 3 § 56

Page

Article 5 § 8

Article 5 § 13

8, 12, 16

10, 12

Article 5 § 17

11, 16

STATUTES:

28 U.S.C. § 1257(3)

Vernon’s Annotated Texas Statutes:

Article 1970-166d

TREATISES:

12 Tex. Jur.2d, Constitutional Law, § 14

12 Tex. Jur.2d, Constitutional Law, § 17

16 Federal Practice and Procedure, § 4030,

by Wright, Miller, Cooper and Gressman

16 Federal Practice and Procedure, § 4031, State

Incorporation of Federal Law, by Wright, Miller,

Cooper and Gressman ..

By sitiadieieaan

In The

Supreme Court of the United States

October Term, 1986

co)

ROME RUTLEDGE,

Petitioner,

RUTH RUTLEDGE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

REPORTS OF OPINIONS BELOW

The Opinion of the Court of Appeals for the Second

Supreme Judicial District of Texas is found at 709 S.W.2d

389. (See appendix, Exhibit A)

The Opinion on Motion for Rehearing of the Court of

Appeals for the Second Supreme Judicial District of Texas

is found at 711 S.W.2d 487. (See appendix, Exhibit B)

The Opinion on Second Motion for Rehearing of the

Court of Appeals for the Second Judicial District of Texas

is found at 720 S.W.2d 633. (See appendix, Exhibit C)

Petitioner’s Third Motion for Rehearing was over-

ruled without an opinion. (See appendix, Exhibit D)

Petitioner’s application for Writ of Error to the Su-

preme Court of Texas was refused with the notation of no

reversible error. - (See appendix, Exhibit E)

Petitioner’s Motion for Rehearing of his application

for Writ of Error was overruled by the Supreme Court of

Texas on April 8, 1987. (See appendix, Exhibit F)

JURISDICTIONAL STATEMENTS

1. Judgment sought to be reviewed is the Opinion on

Second Motion for Rehearing entered on October 16, 1986.

2. The Last Motion for Rehearing was made to the

Supreme Court of Texas which overruled the Motion for

Rehearing of Petitioner’s Application for Writ of Error

on April 8, 1987.

3. The statutory provisien believed to confer juris-

diction on this Court to review the judgment in question

by Writ of Certiorari is 28 U.S.C. § 1257(3).

co)

CONSTITUTIONAL AND STATUTORY PROVISIONS

A. Constitutional Provisions:

1. United States Constitution

SIXTH AMENDMENT TO THE UNITED

STATES CONSTITUTION

In all Criminal Prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Coun-

sel for his defense.

SEVENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION

In suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall

be preserved, and no fact tried by jury, shall be otherwise

re-examined in any Court of the United States, than ac-

cording to the rules of the common law.

FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual ser-

vice in time of War or public danger; nor shall any per-

son be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any crim-

inal case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without

just compensation.

FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

Section 1: All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

Section 2: Representatives shall be apportioned

among the several States according to their respective

numbers, counting the whole number of persons in each

State, excluding Indians not taxed. But when the right to

vote at any election for the choice of electors for Presi-

dent and Vice-President of the United States, Representa-

tives in Congress, the Executive and Judicial officers of

a State, or the members of the Legislature thereof, is

denied to any of the male inhabitants of such State, being

twenty-one years of age, and citizens of the United States,

or in any way abridged, except for participation in re-

bellion, or other crime, the basis of representation therein

shall be reduced in the proportion which the number of such

male citizens shall bear to the whole number of male citi-

zens twenty-one years of age in such State.

Section 3: No person shall be a Senator or Repre-

sentative in Congress, or elector of President and Vice-

>) |

President, or hold any office, civil or military, under the

United States, or under any State, who having previously

taken an oath, as a member of Congress, or as an officer

of the United States, or as a member of any State Legis-

lature, or as an executive or judicial officer of any State, to

support the Constitution of the United States shall have

engaged in insurrection or rebellion against the same, or

given aid or comfort to the enemies thereof. But congress

may by a vote of two-thirds of each House, remove such

disability.

Section 4: The validity of the public debt of the

United States, authorized by law, including debts incurred

for payment of pensions and bounties for services in sup-

pressing insurrection or rebellion, shall not be questioned.

But neither the United States nor any State shall assume

or pay any debt or obligation incurred in aid of insurrec-

tion or rebellion against the United States, or any claim

for the loss or emancipation of any slave; but all such

debts, obligations and claims shall be held illegal and void.

Section 5: The Congress shall have power to enforce,

by appropriate legislation, the provisions of this article.

2. Texas Constitution

ARTICLE 1 § 15 TEXAS CONSTITUTION

The right of trial by jury shall remain inviolate. The

legislature shall pass such laws as may be needed to reg-

ulate the same, and to maintain its purity and efficiency.

Provided, that the Legislature may provide for the tem-

porary commitment, for observation and/or treatment, of

mentally ill persons not charged with a criminal offense,

for a period of time not to exceed ninety (90) days, by

order of the County Court without the necessity of a trial

by jury.

ARTICLE 3 § 56 TEXAS CONSTITUTION

The Legislature shall not, except as otherwise pro-

vided in this Constitution, pass any local or special law,

authorizing:

The creation, extension or impairing of liens;

Regulating the affairs of counties, cities, towns, wards,

or school districts ; \

Changing the names of persons or places;

Changing the venue in civil or criminal cases;

Authorizing the laying out, opening, altering, or main-

taining of roads, highways, streets or alleys;

Relating to ferries or bridges, or incorporating ferry

or bridge companies, except for the erection of bridges

crossing streams which form boundaries between this and

any other State;

Vacating roads, town plats, streets, or alleys;

Relating to cemeteries, grave-yards or public grounds

not of the State;

Authorizing the adoption or legitimation of children;

Locating or changing county seats;

Incorporating cities, towns or villages, or changing

their charters;

For the opening and conducting of elections, or fixing

or changing the places of voting;

Granting divorces;

Creating offices or prescribing the powers and duties

of officers, in counties, cities, towns, election or school

districts ;

Changing the luw of descent or succession;

Regulating the practice or jurisdiction of, or changing

the rules of evidence in any judicial proceeding or inquiry

before courts, justices of the peace, sheriffs, commission-

ers, arbitrators or other tribunals, or providing or chang-

ing methods for the collection of debts, or the enforcing of

judgments, or prescribing the effect of judicial sales of

real estate;

Regulating the fees, or extending the powers and du-

ties of aldermen, justices of the peace, magistrates or con-

stables ;

Regulating the management of public schools, the

building or repairing of school houses, and the raising of

money for such purposes.

Fixing the rate of interest;

Affecting the estates of minors or persons under dis-

ability ;

Remitting fines, penalties and forfeitures, and refund-

ing moneys legally paid into the treasury ;

Exempting property from taxation;

Regulating labor, trade, mining and manufacturing;

Declaring any named person of age;

Kixtending the time for the assessment or collection

of taxes, or otherwise relieving any assesor or collector

of taxes from the due performance of his official duties,

or his securities from liability ;

Giving effect to informal or invalid wills or deeds;

Summoning or empanelling grand or petit juries;

For limitation of civil or criminal actions;

For incorporating railroads or other works of internal

improvements ;

And in all other cases where a general law can be

made applicable, no local or special law shall be enacted ;

provided, that nothing herein contained shall be construed

to prohibit the Legislature from passing special laws for

the preservation of the game and fish of this State in cer-

tain localities.

ARTICLE 5 §& TEXAS CONSTITUTION

[The following is the wording of Article 5 ¢ 8 at the

time of trial in this case. ]

The District Court shall have original jurisdiction in

all criminal cases of the grade of felony; in all suits in

behalf of the State to recover penalties, forfeitures and

escheats; of all cases of divorce; of all misdemeanors in-

volving official misconduct; of all suits to recover damages

for slander or defamation of character; of all suits for

trial of title to land and for the enforcement of liens

thereon; of all suits for trial of the right of property

levied upon by virtue of any writ of execution, sequestra-

tion or attachment when the property levied on shall be

equal to or exceed in value five hundred dollars; of all

suits, complaints or pleas whatever, without regard to

any distinction between law and equity, when the matter

in controversy shall be valued at or amount to five hun-

dred dollars exclusive of interest; of contested elections,

and said court and the judges thereof, shall have power

to issue writs of habeas corpus, mandamus, injunction

and certiorari, and all writs necessary to enforce their

jurisdiction.

The District Court shall have appellate jurisdiction

and general control in probate matters, over the County

Court established in each county, for appointing guardians,

granting letters testamentary and of administration, pro-

bating wills, for settling the accounts of executors, ad-

ministrators and guardians, and for the transaction of all

business appertaining to estates; and original jurisdiction

and general control over executors, administrators guard-

ians and minors under such regulations as may be pre-

scribed by law. The District Court shall have appellate

jurisdiction and general supervisory control over the

County Commissioners Court, with such exceptions and

under such regulations as may be prescribed by law: and

shall have general original jurisdiction over all causes of

action whatever for which a remedy or jurisdiction is

not provided by law or this Constitution, and such other

jurisdiction, original and appellate as may be provided

by law.

The district court, concurrently with the county court,

shall have the general jurisdiction of a probate court. It

shall probate wills, appoint guardians of minors, idiots,

lunatics, persons non compos mentis and common drunk-

ards, grant letters testamentary and of administration,

settle accounts of executors, transact all business apper-

aining to deceased persons, minors, idiots, lunatics, per-

sons non compos mentis and common drunkards, including

the settlement, partition and distribution of estates of

deceased persons and to apprentice minors, as provided

by law. In any proceeding involving the general jurisdic-

tion of a probate court, including such specified proceed-

ings, the district court shall also have all other jurisdiction

conferred upon the district court by law. The legislature,

however, shall have the power, by local or general law,

Section 16 of Article 5 of this Constitution notwithstand-

ing, to increase, diminish or eliminate the jurisdiction of

either the district court or the county court in probate

matters, and in cases of any such change of jurisdiction,

the legislature shall also conform the jurisdiction of the

other courts to such change. ‘he legislature shall have

the power to adopt rules governing the filing, distribution

and transfer of all such cases and proceedings as between

district courts, county courts, and other courts having jur-

isdiction thereof, and may provide that all appeals in such

matters shall be to the court of (civil) appeals.

Amended November 6, 1973.

ARTICLE 5 § 138 TEXAS CONSTITUTION

Grand and petit jurors in the District Courts shall be

composed of twelve men; but nine members of a grand jury

shall be a quorum to transact business and present bills. In

trials of civil cases, and in trials of criminal cases below

the grade of felony in the District Courts, nine members of

the jury, concurring, may render a verdict, but when the

verdict shall be rendered by less than the whole number, it

shall be signed by every member of the jury concurring in

it. When, pending the trial of any case, one or more jurors,

not exceeding three, may die, or be disabled from sitting,

the remainder of the jury shall have the power to render

the verdict; provided, that the Legislature may change or

modify the rule authorizing less than the whole number of

the jury to render a verdict.

ARTICLE 5 $17 TEXAS CONSTITUTION

The County Court shall hold a term for civil business

at least once in every two months, and shall dispose of pro-

bate business, either in term time or vacation as may be

provided by law, and said Court shall hold a term for crim-

inal business once in every month as may be provided by

law. Prosecutions may be commenced in said court by in-

formation filed by the county attorney, or by affidavit, as

may be provided by law. Grand juries empaneled in the

District Courts shall enquire into misdemeanors, and all in-

dictments therefor returned into the District Courts shall

forthwith be certified to the County Courts or other in-

ferior court, having jurisdiction to try them for trial; and

if such indictment be quashed in the County, or other in-

ferior court, the person charged, shall not be discharged

if there is probable cause of guilt, but may be held by such

court or magistrate to answer an information affidavit. A

jury in the County Court shall consist of six men; but no

jury shall be empanelled to try a civil case unless demanded

by one of the parties, who shall pay such jury fee therefor,

in advance, as may be prescribed by law, unless he makes

affidavit that he is unable to pay the same.

crs es uae

STATEMENT OF THE CASE

Material Facts:

This was a divorce case filed in the County Court at

Law of Wichita County, Texas by Respondent, Ruth Rut-

ledge. The County Court at Law of Wichita County is a

legislatively created court, and its enabling statute is Ar-

ticle 1970-166d V.A.T.S. This statute specifically pro-

vides for a six person jury, Article 1970-166d §7. Ar-

ticle 1970-166d purports to give the Wichita County Court

at Law jurisdiction to hear divorce cases.

At the time of trial, in Texas the District Court had

exclusive original jurisdiction over divorce cases. Texas

Constitution Article 5 §8. The Texas Constitution re-

quires twelve person juries in district court cases. Texas

Constitution Article 5 § 13.

In a ease directly in point with the facts presented

here the Texas Supreme Court in Jordan v. Crudgington,

931 S.W.2d 641 (Tex. 1950) found that a provision for

only six jurors in divorce cases violates Article 1 § 15 of

the Texas Constitution. In the Jordan case there was a

severability clause contained in the Jordan Court enabling

legislative statute which saved the remainder of the stat-

ute in Jordan. There is not presently and has never been a

severability clause in Article 1970-166d V.A.T.S., which

created the Wichita County Court at Law.

In an attempt to circumvent the unequivocal require-

ments of the Texas Constitution and prior case law the

Court of Appeals turned to the United States Supreme

Court cases of Williams v. Florida, 399 U.S. 78 (1970) and

Colgrove v. Baltin, 413 U.S. 149 (1973) holding that six

person juries satisfied the sixth and seventh amendments

to the United States Constitution, and the Court of Ap-

peals concluded:

Therefore, inasmuch as the United States Su-

preme Court has determined that the term ‘‘jury”’

does not necessarily connote a body of twelve members

under the United States Constitution, (citing Williams

and Colgrove), we find there is no Texas econstitu-

tional prohibition against the legislature providing

that a county court at law may have a six person jury.

Accordingly, we hold that the provision in section 7

(a) of Article 1970-166d for a six person jury does not

violate the Texas Constitution.

Quoting Rutledge v. Rutledge, 720 S.W.2d 633, 635

(1986).

In its application of its interpretation of the United

States Constitution the Court of Appeals noted in its Opin-

ion, on Second Motion for Rehearing, that there was no

claim before the court that Article 1970-166d violates the

United States Constitution. Nevertheless, the Court of

Appeals ignored decades of Texas decisions involving judi-

cial interpretation of the Texas Constitution and reached

out to ‘‘determine if the meaning of the term ‘jury’ had

changed since that time’’? [1950]. The history of con-

stitutional construction in Texas is found in Chief Judge

Onion’s dissent reported in Faulder v. Hill, 612 S.W.2d 512

(Tex. Crim. App. 1980) :

‘‘Turing (sic) to the rules of constitutional con-

struction, it is observed that constitutional provisions

which are not ambiguous and are not open to more

than one construction or interpretation must be given

their full effect without regard to the consequences.

Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147

(1942); Rawlins v. Drake, 291 S.W.2d 349 (Tex. Civ.

App.-Dallas 1956) ; Bexar County Hospital District v.

Crosby, 320 S.W.2d 247, 253 (Tex. Civ. App.-San An-

tonio 1958); Keller v. State, 87 S.W. 669 (Tex. Cr.

App. 1905) ; Koy v. Schneider, 110 Tex. 369, 218 S.W.

479, 221 S.W. 880 (1920), and constitutional provisions

will not be construed to be ambiguous and contradic-

tory if such construction is avoidable. Holman v.

Broadway Improvement Co., 300 S.W. 15 (Tex. Com.

App. 1927), and when the signification of a phrase or

clause is plainly discoverable from the words thereof,

there is no reason to resort to rules of construction

and effect should be given to the meaning thus ascer-

tained. Words will be considered to have been used

in their natural sense and ordinary significance un-

less the context indicates the contrary. 12 Tex. Jur.

2d, Constitutional Law, § 14, pp.362-363. The lan-

guage used must be presumed to have been carefully

selected and the words used are to be understood as

people generally understood at the time of the adop-

tion of the Constitution. Cramer v. Sheppard, 140

Tex. 271, 167 S.W.2d 147 (1942); City of Amarillo

v. Love, 356 S.W.2d 325 (Tex. Civ. App.-Amarillo

1962), err. ref, n.r.e.; Leander Ind. Sch. Dist. v. Cedar

Park Water Sup. Corp., 479 S.W.2d 908 (Tex. 1972).

See Markowsky et al. v. Newman et al., 134 Tex. 440,

136 S.W.2d 808 (1940). And if a term appears to

have received a judicial construction prior to its use

in a constitutional provision, the inference is that it

bears this signification. 12 Tex. Jur.2d, Constitutional

Law, § 14, p.363; Carr v. Tucker, 42 Tex. 330 (1875).*

* * *

‘¢A constitution should receive a consistent and

uniform interpretation, so that it is not to be taken to

mean one thing at one time and another thing at an-

other time when the circumstances ny have so

changed as perhaps to make a different rule in the case

seem desirable.’’ 12 Tex. Jur.2d, Constitutional Law,

§ 17, p.365.

The primary rule of interpreting and construing

the Constitution is to ascertain the intention of the

people in adopting it and give effect to that intention.

Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912);

Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.

2d 13 (1931); Ferguson v. W ile ox, 119 Tex. 280, 28

S.W.2d 526 (1930) ; Farrar v. Bd. of Trustees of Emp.

Retirement System of Tex., 150 Tex. 572, 243 S.W.2d

688 (1951). The meaning of a Constitution is fixed

when it is adopted and is not different at any subse-

quent time. Cox v. Robison, supra; Jones v. Ross, 141

Tex. 415, 173 S.W.2d 1022 (1943). And in interpret.

ing the Constitution courts may look to the conditions

existing at the time of adoption, general spirit of times,

and prevailing sentiment, J/umme v. Marrs, 120 Tex.

383, 40 S.W.2d 31 (1931).

The courts, in construing the Constitution, must

give effect to the intent of the people in adopting it as

found in the instrument itself, and it will be presumed

that the language thereof has been employed with suf-

ficient p. cision to convey such intent, and where such

presumption prevails nothing remains except to en-

force such intent. Holly v. State, 14 Tex. App. 505

(1883).

* * *

It is not for courts to undertake to amend or re-

write the Constitution by judicial decision. Rawlins

v. Drake, 291 S.W.2d 349, 350 (Tex. Civ. App.-Dallas

1956). Only the people can do that. Moore v. Edna

Hospt. Dist., 449 S.W.2d 508 (Tex. Civ. App.-Corpus

Christi 1969), ref. n.r.e. Those called upon to con-

strue the Constitution are not authorized to read into

the Constitution language not contained therein or by

construing the Constitution differently from its plain

meaning, Cramer v. Sheppard, 140 Tex. 271, 167 S.W.

2d 147 (1942). Constitutional provisions may not be

bent to meet a beneficent purpose however noble the

design may be. Ex Parte Smyth, 56 Tex. Cr.R. 375,

120 S.W. 200 (1909). Courts are not to be econeerned

with the wisdom or lack of wisdom of a constitutional

provision and need not exert their ingenuity to find

reasons to thwart the intention of the a as clearly

expressed in the Constitution, Carpenter v. Sheppard,

135 Tex. 413, 145 S.W.2d 562 (1940).9”’

The Court of Appeals having found support for its

desired result in the United States Constitution, proceeded

to ignore 1) the Texas Constitutional! provisions for twelve

person juries in district court and 2) the Texas Constitu-

tion? requirement that district courts in Texas have ex-

elusive original jurisdiction of divorce cases and 3) the

rules of Constitutional construction in Texas and 4) stare

decisis, and applied the Sixth and Seventh Amendments

of the United States Constitution to the Texas Constitu-

tion.

Manner of raising the federal questions:

Any question of federal law being involved in this case

was first injected by the Court of Appeals in its Opinion

on Second Motion for Rehearing.

Petitioner raised the following issues in his Third Mo-

tion for Rehearing:

POINT OF ERROR NO. ONE

The Court of Appeals erred in its Opinion on Second

Motion for Rehearing in analyzing federal law on the

question of a right to a specific number of jurors.

POINT OF ERROR NO. TWO

The Court of Appeals erred in its Opinion on Second

Motion for Rehearing because the Texas Constitution af-

fords greater rights to the Citizens of Texas on the sub-

ject of the number of jurors that the United States Con-

stitution has been interpreted to provide.

l Article 5 § 17 Texas Constitution

2 Article 5 § 8 Texas Constitution

POINT OF ERROR NO. THREE

The Court of Appeals erred in its Opinion on Second

Motion for Rehearing because while states may not re-

strict or lessen the rights afforded its citizens under the

United States Constitution and Federal Law, the individ-

ual states may increase or grant its citizens greater rights

than afforded by the Federal,system and the United

States Constitution.

POINT OF ERROR NO. FOUR ’

The Court of Appeals erred in its Opinion on Second

Motion for Rehearing in not following traditional rules

of Constitutional Construction and Stare Decisis.

These four points are the body of this Petition for

Certiorari.

Petitioners Third Application for Rehearing was over-

ruled without Opinion.

These issues were presented again in Petitioner’s

Application for Writ of Error to the Supreme Court of

Texas.

Petitioner’s Application for Writ of Error was re-

fused with the notation ‘‘No Reversible Error’’.

On Motion for Rehearing of Petitioner’s Application

for Writ of Error to the Supreme Court of Texas, Peti-

tioner presented the following:

POINT OF ERROR ON MOTION FOR REHEARING

Whether it is a denial of due process or equal pro-

tection of the law under the United States Constitution

for a State Supreme Court to refuse to apply a State

Constitutional Provision expressly calling for a ‘‘twelve’’

man jury on the grounds that the United States Supreme

Court had declared such a number of jurors was not re-

quired by the United States Constitution, or stated an-

other way, is the citizen of a state denied due process or

equal protection by the refusal of a State Supreme Court

to follow its own Constitution when the violated provision

of a State Constitution had been approved by Congress

as a condition of membership in the union?

Petitioner’s Motion for Rehearing was overruled

without Opinion.

fay

: REASONS FOR GRANTING THE WRIT

1. Petitioner has a due process guarantee of federal

protection of an interest expressly created by the

Texas Constitution.

In discussing the concept of federal protection of an

interest created by state law, and noting that cases raising

such claims must be reviewed on a case by case basis,

Professors Wright, Miller, Cooper and Gressman stated in

16 Federal Practice and Procedure section 4030 at page

758 that:

Cases arising under the due process protection of in-

terests in ‘liberty’ and ‘property’ provide the richest

examples of special need for the Supreme Court to

protect rights created by state law. To a large ex-

tent, federal law defines the area of protected liberty,

and state law defines the area of protected property.

Federal law may shape the concept of property, how-

ever, and state law may create liberty interests that

would not otherwise exist.

State law may recognize liberty or property interests

more extensive than those protected independently by the

federal constitution. See, Mills v. Rogus, 457 U.S. 291

(1982). The interests protected attain constitutional stat-

us by virtue of the fact that they have heen initially ree-

ognized and protected by state law. When the State sceks

to remove or significantly alter that status the due process

clause of the Fourteenth Amendment to the United States

Constitution comes into play. See, Wolff v. McDonnell,

418 U.S. 539 (1974) and Paul v. Davis, 424 U.S. 693 (1976)

2. The incorporation by the Texas Court of the Sixth

and Seventh Amendments to the United States

Constitution and federal case law to deny peti-

tioner’s express rights under the Texas Constitu-

tion violated Petitioner’s due process rights under

the fourteenth amendment to the United States

Constitution.

In the area of conflicts between state and federal con-

stitutional law, the state law must yield to a more pro-

tective federal law. In this case there is no conflict em-

bodied in a state constitution which gives its citizens

greater rights in the area of entitlement to a specific

number of jurors than the Sixth and Seventh Amend-

ments to the United States Constitution does. And yet

the petitioner has lost valuable state constitutional pro-

tections because the federal constitution and federal case

law determinations are not as broad in this area as the

state law.

There is only one court in the land that can declare

that this state court decision which deprives Petitioner

of his greater non-conflicting state constitutional rights

cannot stand nor can Petitioner’s state constitutional

rights be diminished or abolished on the reasoning that

the respective United States Constitutional rights are not

as broad.

When the State Court utilized federal constitutional

law to deprive Petitioner of his state constitutional rights,

the door for review and relief from an erroneous appli-

cation of law by the United States Supreme Court was

opened. See, 16 Federal Practice and Procedure § 4031—

State Incorporation of Federal Law pages 763-769 by

Wright, Miller, Cooper and Gressman

3. Congressional approval of the Texas Constitution

was a prerequisite to the admission of Texas into

the union.

As Texas was not one of the original thirteen colonies,

it was required to apply for admission to the union. One

of the deprivations frequented on residents of the area

which we now know as Texas was the denial of trial by

jury. The Texas Declaration of Independence complains

of the Mexican Government for denying a trial by jury in *

the strongest of terms declaring that Mexico ‘‘has failed

and refused to secure, on a firm basis, the right of trial '

by jury, that palladium of civil liberty, and only safe guar-

antee for the life, liberty, and property of the citizen.’’

Source, interpretive commentary Vernon’s Ann. Tex. Const.

Article 1 Section 15. In part to better secure the full pro-

tections of court and jury the drafters of the Texas Con-

stitution of 1845 set out in considerable detail and delib-

a a

erate specificity the requirements of judiciary, courts and

juries. Another major reason for such detail and attention

being given was the necessity that the State Constitution

be acceptable to the United States Congress as a condition

for admission to the union.

When the state courts decide that express Texas con-

stitutional protections are not to be given effect then this

court should step in to assure that the original intent of

the Congress in admitting Texas to the union is being

satisfied,

Respectfully submitted,

Barpara C, Crampton

Bar Card No. 05004000

CRAMPTON, Crampton & EstrapDa

905 Lamar Avenue

Wichita Falls, Texas 76301

(817) 723-9746

Attorneys for Petitioner

App. 1

EXHIBIT A

Rome RUTLEDGE, Appellant.

Ruth RUTLEDGE, Appellee.

No. 2-85-178-CV.

Court of Appeals of Texas.

Fort Worth.

May 15, 1986.

Husband appealed from judgment of the County Court

at Law, Wichita County, Jim Hogan, J., dissolving his mar-

riage and dividing parties’ community estate. The Court

of Appeals, Hill, J., held that: (1) trial court did not abuse

its discretion by denying husband’s motion for new trial

alleging that wife fraudulently misrepresented to court

existence and value of oil leases awarded to husband, and

(2) trial court did not abuse its discretion in dividing estate

unequally in favor of wife.

Affirmed.

Rehearing denied, 711 S.W.2d 437.

Crampton, Crampton & Estrada, Holly Crampton,

Wichita Falls, for appellant.

Fillmore, Purtle, Spurgers & Briley, Stephen Briley,

Wichita Falls, for appellee.

Before BURDOCK, HILL and HUGHES (Retired,

Sitting by Assignment), JJ.

App. 2

OPINION

HILL, Justice.

Rome Rutledge appeals from the judgment dissolving

his marriage to Ruth Rutledge and dividing their commu-

nity estate. In four points of error, Rome asserts that the

trial court erred in not granting him a motion for new trial

because of fraudulent misrepresentation made by Ruth at

trial, and that the trial court abused its discretion in the

division of the community estate by making an unequal divi-

sion favorable to Ruth.

We affirm, because we find that the trial court did not

abuse its discretion in denying Rome’s motion for new trial,

and because we find that the trial court did not abuse its

discretion in the division of the community property.

In point of error number one, Rome urges that the

trial court erred in not granting him a new trial because

Ruth fraudulently misrepresented to the court the existence

and value of the Holliday oil leases awarded to him. He

specifically refers to the fact that he learned after the trial

that Ruth had been told that if the leases were not pumped

within 90 days that they could be lost. Roger Crampton,

an attorney and the father of Rome’s lawyer, testified at

the hearing on the motion for new trial that he had exam-

ined the leases in question and that it was his opinion that

the leases had all terminated, due to the fact that none of

them contained an express cessation of production clause.

He testified that he could have reached the same conclusion

prior to trial if Rome had inquired.

The evidence at trial showed that Rome was a retired

airline pilot who had been successful in oil and gas opera-

tions since approximately 1970. Ruth had not previously

App. 3

handled any oil and gas endeavors. She had not worked

outside the home since the marriage, except for duties she

assumed at the couple’s horse ranch.

One day after Ruth filed for divorce, Rome borrowed

$200,000 from Parker Square Bank, pledging community

certificates of deposit worth $200,000. He was served with

citation three days later. The day after service, he wrote

a check on the bank for $30,000 and withdrew $74,000 from

a certificate and checking account at another bank. Rome

had $230,000 plus of this money still in hand at trial. Later

he had all the furniture from the ranch house put into stor-

age and left for Las Vegas, Nevada. He did not tell Ruth

about the funds, the furniture, or the fact that he was leav-

ing for Las Vegas. He was gone approximately six weeks.

While he was gone, Ruth was appointed community receiver

of the community assets, including the leases in question.

She was removed as receiver on December 3, 1984. Prior

to leaving, Rome told the contract pumper to cease pump-

ing the Holliday leases because of salt water leakage. In

September, 1984, Ruth requested the pumper to start pump-

ing the wells again provided it could be done safely. In

December, 1984, Rome again requested that the wells be

shut down because of salt water problems, and Ruth noti-

fied the pumper to do so. Trial on the merits was held

April 2, 1985.

Ruth’s expert testified at trial that the Holliday leases

were worth $100,000. Rome testified that the leases, in-

cluding equipment, were worth approximately $150,000.

Having reviewed all of the testimony, we do not find

that the trial court abused its discretion by denying Rome’s

motion for new trial. The trial court could have reason-

App. 4

ably concluded that under these circumstances Rome was

in as good a position as Ruth to know that the leases could

have terminated due to the cessation of production. In

fact, the trial court could have concluded that Rome would

know more about such matters than Ruth and that nothing

prevented him from exercising the reasonable diligence re-

quired to make a more accurate assessment of the leases’

value prior to trial. We overrule point of error number one.

In points of error numbers two, three or four, Rome

urges that the trial court abused its discretion by dividing

the estate unequally in favor of Ruth, and that there is no

evidence or insufficient evidence to support the division.

[2,3] The trial court has wide discretion in dividing

the estate of the parties, and that division should be cor-

rected on appeal only when an abuse of discretion has been

shown. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981).

It is presumed that the trial court exercised its discretion

properly. Id. at 699. The community property need not be

equally divided. Jd.

[4,5] The trial court, in dividing the property, may

take into consideration several factors such as the spouses’

capacities and abilities, benefits which the party not at fault

would have derived from continuation of the marriage, busi-

ness opportunities, education, relative physical condition

and obligations, disparity of ages, size of separate estates,

and the nature of the property. Jd. The consideration of

a disparity in earning capacities or incomes is proper and

need not be limited by ‘‘necessitous’’ circumstances. Id.

Rome is in his late 60’s. Since the 1970’s he has been

active in making the family’s oil investments. Ruth, who

Tinie

App. 5

is in her late 40’s, has a high school education and has not

worked outside the home since their marriage.

Ruth acknowledged having a relationship with another

man during the marriage. Although Ruth had not alleged

any fault on the part of Rome, there was some testimony

concerning his relationships with other women. He testi-

fied as follows:

Q. Have you had numerous affairs with women

after you were married?

A. As I told you, no; and I’m a gentleman.

Another witness then testified:

Q. Mr. Durbin, have you ever seen Rome Rut-

ledge outside a bar embracing a woman not his wife?

A. Yes.

Q. Where?

A. On Lamar Street, I believe it is.

Q. And was he doing it in a gentlemanly fashion?

A. Yeah.

[6] The trial court divided the property as follows:

Ruth Values

Overriding royalty interests | Equal to active leases

Iowa Park Ranch $450,000.00

Personal property from the ranch 7,871.00

Horses and equipment from the ranch 81,700.00

Cash 165,000.00

Miscellaneous personal property Unknown ‘

1983 El Dorado 24,000.00

$728,571.00

App. 6

ns Oar hart

Rome Values

Active oil leases Equal to overriding

royalty interests

House at 2614 Bretton Road $125,000.00

Personal property from house on Bretton

Road 12,880.00

Oil field equipment Unknown

Braniff retirement rights Unknown

Two Honda motorcycles 900.00

Penrod and Crabtree notes Less than $40,000.00

Two Model A automobiles 10,000.00

Cessna 310 aircraft 40,000.00

Glastron jet boat 10,000.00

Travel trailer 3,000.00

1983 silver Ford pickup 8,000.00

Two-horse trailer 1,000.00

Cash 164,500.00

Run checks 11,298.00

Miscellaneous personal property Unknown

1984 Cadillac El Dorado 23,000.00

Cashier’s check 74,000.00

$483,178.00

(total does not include the

Penrod and Crabtree notes)

We do not find that the trial court abused its discretion in

the division of the property. Rome relies on the case of

Erger v. Erger,590 S.W.2d 186 (Tex.Civ.App.—Fort Worth

1979, writ dism’d). In that case the court awarded the wife

all of the residence, which was the couple’s principal asset,

and made a relatively equal distribution of the remaining

property. This division resulted in the wife receiving a

larger share of the property, despite the fact that she had

a significantly larger separate estate and had a greater

earning capacity than the husband. In the case at bar, there

App. 7

is no evidence that Ruth Rutledge has any significant sepa-

rate estate. Her husband appears to be capable of doing

very well in his oil investments, whereas the evidence showed

that Ruth had not worked during the marriage and had no

marketable job skills. She testified she had been raised on

a farm and felt that she could make money raising horses

on the ranch which the trial court awarded to her. We over-

rule points of error numbers two, three and four.

The judgment is affirmed.

App. 8

EXHIBIT B

Rome RUTLEDGE, Appellant,

Ruth RUTLEDGE, Appellee.

No. 2-85-178-CV.

Court of Appeals of Texas,

Fort Worth.

June 26, 1986.

Rehearing Denied June 26, 1986.

Husband appealed from judgment of the County Court

at Law, Wichita County, Jim Hogan, J., dissolving his mar-

riage and dividing parties’ community estate. The Court

of Appeals, 709 S.W.2d 389, affirmed. On motion for re-

hearing, the Court of Appeals, Hill, J., held that county

court at law’s jurisdiction to enter divorce decree was not

unconstitutional.

Motion denied.

Statutes 78

County court’s jurisdiction to enter divorce decree

under constitutional provision stating that legislature had

authority to establish nondistrict courts with authority over

divorce cases concurrent with that of district courts did not

violate constitutional provision stating that legislature could

not pass any local or special law granting divorces. Ver-

non’s Ann.Texas Const. Art. 3, § 56; Art. 5, §$ 1, 8; Vernon’s

Ann.Texas Civ.St. art. 1970-166d.

App. 9

Crampton, Crampton & Estrada and Holly Crampton,

Wichita Falls, for appellant.

Fillmore, Purtle, Spurgers & Briley and Stephen

Briley, Wichita Falls, for appellee.

Prior Report: 709 S.W.2d 389.

Before BURDOCK, HILL and HUGHES (Retired)

(Sitting by designation), JJ.

OPINION ON MOTION FOR REHEARING

HILL, Justice.

Upon motion for rehearing, Rome Rutledge, the ap-

pellant, for the first time asserts that TEX.REV.CIV.

STAT.ANN. art. 1970-166d (Vernon Supp.1986), the stat-

ute which confers divorce jurisdiction upon the County

Court at Law of Wichita County (now County Court at

Law No. 1 of Wichita County) is unconstitutional because

it is in conflict with TEX. CONST. art III, sec. 56 and

art. V, sec. 8.

It has been held that under the authority of art. V,

sec. 1 of the Texas Constitution, the legislature has the

authority to establish nondistrict courts with authority

over divorce cases concurrent with that of the district

courts. Jordan v. Crudgington, 231 S.W.2d 641 (Tex.

1950). This rule has been applied to County Courts at

Law. Fleming v. Fleming, 595 S.W.2d 199 (Tex.Civ.App.

—Waco 1980, writ dism’d). “Those cases discussed the

issue as it might relate to Rome’s claim under art. V, see. 8.

Article III, see. 56 of the Constitution provides that

the legislature may not pass any local or special law grant-

App. 10

ing divorces. The Supreme Court of Texas, in answering

certified questions from this Court, held that the purpose

of the provision is to ban the right of the legislature to

grant a divorce to individuals by a special act. Wood v.

Wood, 159 Tex. 350, 320 S.W.2d 807 (1959). In the case

at bar, the Rutledges were divorced by the County Court -

at Law of Wichita County, not by the Texas Legislature.

We therefore find no violation of art. III, sec. 56 of the

Texas Constitution. We overrule points of error one

through five of the motion for rehearing.

We also overrule the remaining points of error raised

in the motion for rehearing for the reasons stated in our

original opinion.

Appellant’s motion for rehearing is denied.

App. 11

EXHIBIT C

Rome RUTLEDGE, Appellant,

Ruth RUTLEDGE, Appellee.

No. 2-85-178-CV.

Court of Appeals of Texas

Fort Worth

Oct. 16, 1986.

Husband appealed judgment of County Court at Law,

Wichita County, Jim Hogan, J., dissolving marriage and

dividing parties’ assets. The Court of Appeals, 709 S.W.2d

389, affirmed and subsequently denied rehearing, 711

S.W.2d 437 and husband brought second motion for re-

hearing. The Court of Appeals, Hill, J., held that statute

providing for jury of six in divorce case was not unconsti-

tutional.

Motion for rehearing overruled.

Jury 31(2)

There is no state constitutional prohibition against the

legislature’s providing that a county court at law may have

a six-person jury, so that divorce statute providing that

jury shall be composed of six members did not violate State

Constitution. Vernon’s Ann.Texas Const. Art. 1, § 15;

Vernon’s Ann.Texas Civ.St. art. 1970-166d.

Crampton, Crampton & Estrada and Holly Crampton,

Wichita Falls, for appellant.

App. 12

Fillmore, Purtle, Spurgers & Briley and Stephen

Briley, Wichita Falls, for appellee.

Prior reports: 709 S.W.2d 389, 711 S.W.2d 437.

Before BURDOCK, HILL and KELTNER, JJ.

OPINION ON SECOND MOTION FOR REHEARING

HILL, Justice.

Upon second motion for rehearing, appellant con-

tinues to assert that the County Court at Law at Wichita

County never acquired jurisdiction over this divorce case

because the statute creating that court, TEX.REV.CIV.

STAT.ANN. art 1970-166d, (Vernon Pamph.Supp.1986), is

violative of the Texas Constitution. Specifically, in his

sole point of error, appellant now contends that because

section 7(a) of article 1970-166d provides that the jury

shall be composed of six members, and according to appel-

lant, the Texas Constitution requires that a jury in a di-

voree case be composed of twelve jurors, section 7(a) is

unconstitutional. Therefore, appellant claims that article

1970-166d is void in its entirety inasmuch as’it contains no

severability clause. Appellee has not chosen to brief this

issue.

We overrule appellant’s sole point of error.

Appellant relies upon the case of Jordan v. Crudging-

ton, 149 Tex. 237, 231 S.W.2d 641 (1950), wherein the Su-

preme Court of Texas struck a provision in the statute

in question (establishing a ‘‘Court of Domestic Relations

in and for Potter County, Texas’’) which provided for a

six-person jury in divorce cases. The Court found the pro-

vision to be in violation of TEX.CONST.art. I, see. 15, and

opined:

App. 13

The Act provides for a jury of six men. Our Consti-

tution provides in Article I, Section 15, that ‘The

right of trial by jury shall remain inviolate’. The

authorities are in general agreement that the meaning

of the term ‘jury’ is a body of twelve members unless

an express provision for a smaller number is con-

tained in the Constitution. 31 Am.Jur., Jury, sec. 95;

35 C.J., Juries, sec 10, 50 C.J.S., Juries, sec. 7. Article

V, Section 13, of the Constitution provides for juries

of twelve men in the district court, and Section 17 of

the same Article provides for a jury of six men in the

county court. There is no provision in the Constitu-

tion expressly prescribing the number of jurors in a

court established by the Legislature under the author-

ity of the amendment of 1891. In the absence of such

a provision the conclusion is mescapable that the con-

stitutional provision preserving the right of trial by

jury requires that juries in courts of record, such as

the court created by this Act, be composed of twelve

men. 31 Am.Jur., Jury, sec. 95. This ruling does not

apply to justice and police courts. 31 Am.Jur., Jury,

sec. 28; 50 C.J.S., Juries, sec. 77. Since the provision

for a jury of six violates Article I, Section 15, of the

Constitution, that provision is invalid.

Jordan, 231 S.W.2d at 646 (emphasis added). The Court

concluded that since the statute contained a severability

clause, the remainder of the statute was a valid exercise

of the legislative power. Jd. at 646-47.

As is evident, the Jordan court did not rely upon any

case law for its conclusion that a jury in a legislatively

created court must consist of twelve jurors. Rather, the

authorities cited consist merely of three encyclopedic refer-

ences: 31 AM.JUR. Jury see. 95 (which reference material

is unavailable to this court), 35 C.J. Juries see. 10 (1924),

and 50 C.J.S. Juries sec. 7 (1947). These latter two

App. 14

ee ee ee oe

authorities provide as follows (all footnotes have been

omitted) :

[Sece. 10] 2. Number of Jurors. The term ‘‘jury’’

when used without any qualification, addition, or pre-

fix mmports a body of twelve men. This was the mean-

ing of the term at common law, and, unless otherwise

provided, constitutional provisions guaranteeing or

preserving the right to trial by jury have uniformly

been construed as contemplating a jury of this num-

ber. In some jurisdictions the constitutions expressly

provide that a jury must in certain cases consist of

twelve persons. In other jurisdictions the constitu-

tions provide for a jury of less than twelve in certain

cases, or in certain courts, or provide that the legis-

lature may enact laws regulating the number of jurors,

or may make such regulations with respect to certain

courts; but, except in cases where this number has

been changed by statute under the authority of such

a provision or waived by the parties, it cannot be

denied in any case where a jury trial_is a constitu-

tional right.

30 C.J. at 144-46 (emphasis added).

Sec. 7.—Number of Jurors

The term ‘‘jury’’ ordinarily imports a body of

twelve men but constitutional provisions may provide

for, or authorize the legislature to provide for, a jury

of less than twelve in certain cases or in certain courts.

The term “‘jury,’’ when used without any quali-

fication, addition, or prefix, imports a body of twelve

men. This was the meaning of the term at common

law, and, unless otherwise provided, constitutional pro-

vistons guaranteeing or preserving the right to trial

by jury have untformly been construed as contem-

plating a jury of this number. In some jurisdictions

the constitutions expressly provide that the jury must

in certain cases consist of twelve persons. In other

jurisdictions the constitutions provide for a jury of

App. 15

less than twelve in certain cases, or in certain courts,

or provide that the legislature may enact laws regu-

lating the number of jurors, or may make such regu-

lations with respect to certain courts; but, except in

cases in which this number has been changed by statute

under the authority of such a provision or waived by

the parties, it cannot be denied in any case where a

jury trial is a constitutional right, as discussed infra

sec. 123.

90 C.J.S. at 720-21 (emphasis added).

Undoubtedly, Jordan v. Crudington accurately re-

flected the state of the law as it existed at the time that

case was decided in 1950. We must now determine if the

meaning of the term ‘‘jury’’ has changed since that time.

Although in the instant case there is no claim that article

1970-166d violates the United States Constitution, in view

of the fact that the court in Jordan relied upon authorities

which interpreted generally the requirements concerning

the composition of a “jury,’’ in our search for the current

meaning of that term we look for guidance to two United

States Supreme Court cases that were decided subsequent

to Jordan.

In 1970, the United States Supreme Court had the op-

portunity to address the issue of whether the guarantee

of the sixth amendment of the United States Constitution

of a trial by ‘‘jury’’ necessarily requires trial by exactly

twelve persons, or whether a state law providing for trial

by a six-person jury in a criminal case is constitutional.

See Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26

L.Ed.2d 446 (1970). After extensive discussion regarding

the development of the right of trial by jury and the his-

tory of the traditional twelve-person jury, the Court up-

held the state statute and stated:

App. 16

set Sexton ii ie coca aaa

We conclude, in short, as we began: the fact that }

the jury at common law was composed of precisely 12

is a historical accident, unnecessary to effect the pur-

poses of the jury system and wholly without signtft-

cance ‘except to mystics.’ Duncan v. Louisiana, supra,

391 U.S. [145] at 182, 88 S.Ct. [1444] at 1466 [20

L.Ed.2d 491 (1968)] (Harlan, J., dissenting). To read

the Sixth Amendment as forever codifying a feature

so incidental to the real purpose of the Amendment

is to ascribe a blind formalism to the Framers which

would require considerably more evidence than we have

been able to discover in the history and language of

the Constitution or in the reasoning of our past de-

cisions. ... Our holding does no more than leave these

considerations to Congress and the States unre-

strained by an interpretation of the Sixth Amendment

that would forever dictate the precise number than can

constitute a jury. Consistent with this holding, we

conclude that petitioner’s Sixth Amendment rights, as

applied to the States through the Fourteenth Amend-

ment, were not violated by Florida’s deciston to pro-

vide a six-man rather than a 12-man jury.

Id., 399 U.S. at 102-03, 90 S.Ct. at 1907, 26 L.Ed.2d at 461-62

(emphasis added).

Shortly thereafter, the Court was confronted with the

issue of whether the seventh amendment of the United

States Constitution, which provides that ‘‘In Suits at com-

mon law... the right of trial by jury shall be preserved

.,’ requires that a civil jury be composed of twelve

members, and, therefore, whether a local federal rule of

procedure providing that a jury in civil cases shall consist

of six persons, was unconstitutional. See Colgrove v. Bat-

tin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973).

Adhering to the reasoning in Williams, the Court con-

cluded that a six-person jury satisfies the seventh amend-

ment’s guarantee of ‘‘trial by jury”’ in civil cases. See

App. li

Colgrove, 413 U.S. at 159-60, 93 S.Ct. at 2454, 37 L.Ed.2d

at 530-31.

Somewhat surprisingly, there have not been any Texas

cases since Jordan discussing whether a legislatively

created court may have a six-person jury.' However, we

discern no meaningful difference between the language

of the United States Constitution guaranteeing the right to

a ‘‘jury”’ trial in a criminal prosecution, the right of ‘‘trial

by jury’’ in a suit at common law, and the guarantee of

the Texas Constitution that ‘‘[t]he right of trial by jury

shall remain inviolate.’’ Compare U.S. CONST. amends.

VI, VIL with TEX. CONST. art. I, see. 15. Therefore, in-

asmuch as the United States Supreme Court has deter-

mined that the term ‘‘jury’’ does not necessarily connote

a body of twelve members under the United States Consti-

tution, see Willtams, 399 U.S. at 102-03, 90 S.Ct. at 1907,

26 L.Ed.2d at 461-62 and Colgrove, 413 U.S. at 159-60, 93

S.Ct. at 2454, 37 L.Md.2d at 530-31, we find there is no

Texas constitutional prohibition against the legislature

providing that a county court at law may have a six-person

jury. Accordingly, we hold that the provision in section

7(a) of article 1970-166d for a six-person jury does not

violate the Texas Constitution.

We overrule appellant’s second motion for rehearing.

: For a discussion of cases from other jurisdictions, see

Annotation, Statute Reducing Number of Jurors as Violative

of Right to Trial by Jury, 47 A.L.R.3d 895 (1973).

App. 18

EXHIBIT D

IN THE COURT OF APPEALS

FOR THE SECOND COURT OF APPEALS DISTRICT

Rome Rutledge

vs.

No. 2-85-178-CV

Ruth Rutledge

ORDER

On this day came on to be heard the third motion of

appellant, Rome Rutledge, for rehearing.

It is the opinion of this Court that said motion for re-

hearing should be and is hereby overruled. It is the order

of this Court that the opinion and judgment of May 15,

1986, stand unchanged.

The Clerk of this Court is directed to transmit a copy

of this Order to the attorneys of record.

It is so ordered.

SIGNED THIS 4th day of December, 1986.

/s/ John G. Hill

JOHN G. HILL

JUSTICE

OVRULE.CV

App. 19

EXHIBIT E

SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

Mary M. Wakefield, Clerk

February 25, 1987

Ms. Holly Crampton

Crampton, Crampton & Estrada

505 Lamar Avenue

Wichita Falls TX 76301

Mr. Stephen Briley

Banner, Dobbs & Briley

Suite 1200, Hamilton Building

Wichita Falls TX 76301

RE: Case No. C-6083

STYLE: ROME RUTLEDGE

v. RUTH RUTLEDGE

Dear Counsel:

Today, the Supreme Court of Texas refused the

above referenced application for writ of error with

the notation, No Reversible Error.

Respectfully yours,

Mary M. Wakefield, Clerk

By /s/ Blanca KE. Morin, Deputy

App. 20

EXHIBIT F

SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

Mary M. Wakefield, Clerk.

April 8, 1987

Ms. Holly Crampton

Crampton, Crampton & Estrada

505 Lamar Avenue

Wichita Falis TX 76301

Mr. Stephen Briley

Banner, Dobbs & Briley

Suite 1200, Hamilton Building

Wichita Falls TX 76301

RE: Case No. C-6083

STYLE: ROME RUTLEDGE

v. RUTH RUTLEDGE

Dear Counsel:

Today, the Supreme Court of Texas overruled peti-

tioner’s motion for rehearing of the application for writ

of error in the above styled case.

Respectfully yours,

Mary M. Wakefield, Clerk

/s/ By Blanca E. Morin, Deputy

Le Ca Lao te ie fe

App. 21

EXHIBIT G

Art. 1970-166d. County Court at Law of Wichita County

Creation

Section 1. The County Court at Law of Wichita

County is created on the date determined by Section 10

of this Act.

Jurisdiction

Sec. 2. (a) The County Court at Law of Wichita

County has jurisdiction concurrent with the County Court

of Wichita County over all criminal and juvenile proceed-

ings, original and appellate, prescribed by the constitu-

tion and general laws of this state for county courts, and

prescribed by Chapter 762, Acts of the 61st Legislature,

Regular Session, 1969, as amended (Article 1200aa, Ver-

non’s Texas Civil Statutes), and by Chapter 519, Acts of

the 63rd Legislature, Regular Session, 1973 (Article 1970-

166c, Vernon’s Texas Civil Statutes).

(b) The County Court at Law of Wichita County has

civil jurisdiction concurrent with the district courts of

Wichita County over civil suits, causes, and proceedings

when the amount in controversy exceeds $500 and does

not exceed $10,000, exclusive of interest, and, without re-

gard to the value of the estate or matter in question, over

suits, causes, and proceedings involving dissolution of mar-

riage by divorce or annulment, including the adjustment of

property rights, suits affecting the parent-child relation-

ship, suits concerning adoptions, suits for protection of

children in an emergency, suits for removal of disabilities

of minority or for change of name, suits involving delin-

App. 22

quent children or children in need of supervision, suits

brought under the authority of the Uniform Reciprocal

Enforcement of Support Act or the Uniform Interstate

Compact on Juveniles and all other jurisdiction, powers,

and authorities now or hereafter placed in the district or

county courts under the juvenile or child welfare laws of

this state.

no jurisdiction other than that specifically set forth in

this section. The concurrent civil jurisdiction granted to

the County Court at Law of Wichita County does not in-

clude causes or proceedings, original or appellate, con-

cerning eminent domain, roads, bridges and public high-

ways, or the general administration of county business

which is now within the jurisdiction of the commissioners

court of Wichita County. The County Court at Law of

Wichita County has jurisdiction concurrent with the Coun-

ty Court of Wichita County over probate and mental health

proceedings during the absence of the county judge or the

inability of the county judge to perform any of his duties

relating to such proceedings. The absence or inability

of the county judge shall be certified by the county judge

or the commissioners court to the judge of the county

court at law. When certification is for the purpose of

conferring power to perform a judicial act, the certificate

shall be spread on the minutes of the appropriate court.

Notwithstanding the additional powers and duties con-

ferred on the judge of the county court at law during the

absence or inability of the county judge, no additional com-

pensation or salary shall be paid to him, but the compen-

sation or salary of the judge of the county court at law

shall reinain as fixed by law. The provisions of this sub-

App. 23

section r iating to the powers and duties of the judge of

the county court at law during the absence or inability of

the county judge do not repeal the law providing for the

election or appointment of a special county judge but are

cumulative of and in adidtion to all law providing for a

special county judge.

(d) The County Court at Law of Wichita County and

the duly qualified judge of the court have the power to

issue writs and orders as may be necessary in aid of its

jurisdiction or the enforcement of its lawful orders.

(e) The provisions of this section do not diminish the

jurisdiction of the several district courts of Wichita

County, and the district courts shall retain and continue

to exercise the jurisdiction that they now have or that may

be hereafter conferred upon them by law.

Terms

See. 3. The County Court at Law of Wichita County

shall hold two continuous terms which commence on the

first Monday in January and on the first Monday in July

of each year. Each term of court continues until the next

succeeding term begins.

Judge

Section 4. (a) The judge of the County Court at Law

of Wichita County shall be at least 25 years of age and

shall be a citizen of the United States and of this state who

is licensed to practice law in this state, has been a practic-

ing lawyer or a judge of a court in this state or both com-

bined for four years, and has been a resident of Wichita

County for two years. The judge shall reside in Wichita

County during his or her term of office.

App. 24

(b) During his or her term of office, the judge of the

County Court at Law of Wichita County shall not engage

in the private practice of law.

court of Wichita County shall appoint a judge of the

County Court at Law of Wichita County, who shall serve

until the next general election after he or she takes office

and until his or her successor is duly elected and has quali-

fied. Beginning at the general election in 1982 and every

fourth year thereafter, there shall be elected by the quali-

fied voters of Wichita County a judge of the county court

at law for a regular term of four years as provided in

Article V, Section 30, and Article XVI, Section 65, of the

Texas Constitution.

(d) A vacaney occurring in the office of the judge of

the County Court at Law of Wichita County shall be filled

by the commissioners court of Wichita County, and the

appointee shall hold office until the next general election

and until his or her successor is elected and has qualified.

(e) The judge of the County Court at Law of Wichita

County shall execute a bond and take the oath of office

prescribed by law for county judges. The judge may be

removed from office in the same manner and for the same

causes as a county judge.

({) The judge of the County Court at Law of Wichita

County may receive a salary not to exceed 90 percent of

the total annual salary paid to the judges of the district

eourts having jurisdiction in Wichita County to be set by

the commissioners court and to be paid out of the county

treasury by the commissioners court. The salary may be

paid in equal monthly installments. The judge of the

App. 25

County Court at Law of Wichita-County may be entitled

to traveling expenses and necessary office expenses, in-

cluding administrative and clerical help, in the same man-

ner as is allowed the county judge of Wichita County. The

judge of the county court at law is a member of the Ju-

venile Board of Wichita County. The judge of the County

Court at Law of Wichita County shall assess the same fees

as are now prescribed or may be established by law re-

lating to county judge’s fees, all of which shall be collected

by the clerk of the court and shall be paid into the county

treasury on collection, and no part of which shall be paid

to the judge. .

(g) A special judge of the County Court at Law of

Wichita County with the same qualifications as the regular

judge may be appointed or elected in the manner provided

by law for the appointment or election of a special county

judge. If a judge of the County Court at Law of Wichita

County is disqualified to try a case pending in his or her

court, the parties or their attorneys may agree on the se-

lection of a special judge for the case. A special judge is

entitled to the same rate of compensation as the regular

judge.

Personnel

- See. 5. (a) The county attorney and sheriff of Wichi-

ta County shall serve as county attorney and sheriff, re-

spectively, of the County Court at Law of Wichita County.

The district clerk of Wichita County shall serve as clerk

of the County Court at Law of Wichita County in cases

enumerated in Subsection (b) of Section 2 of this Act, and

the county clerk of Wichita County shall serve as clerk of

the County Court at Law of Wichita County in cases enu-

App. 26

merated in Subsection (a) of Section 2 of this Act. These

officials, either personally or by the appointment of a

deputy or assistant, shall perform the duties and responsi-

bilities of their office and are entitled to the compensation,

fees, and allowances prescribed by law for their respective

offices. The commissioners court may employ as many

deputy sheriffs and baliffs as are necessary to serve the

court.

(b) The judge of the County Court at Law of Wichi-

ta County shall appoint an official court reporter who shall

have the same qualifications and whose duties shall in

every respect be the same as now provided by law. The

official court reporter is entitled to the compensation fixed

by the commissioners court of Wichita County.

Transfer of cases and judges

Sec. 6. (a) As soon as practicable after this court is

created, the county clerk may establish a separate docket

for the court created by this Act from among pending

matters filed originally in the county court of Wichita

County and shall transfer those matters to the docket of

the court created by this Act. Equalization of case load

shall be the primary object in establishing the initial case

docket for the County Court at Law of Wichita County.

As soon as practicable after this court is created, the dis-

trict clerk shall establish a separate docket for the County

Court at Law of Wichita County. The transfer oi any

pending matters originally filed in the district courts prior

to the date the County Court at Law of Wichita County

is created shall be in accordance with the provisions of

Subsection (b) of this section.

(b) The judge of the county court and the judge of

the county court at law may transfer cases to and from

App. 27

the dockets of their respective courts, in matters within

their jurisdiction, in order that the business may be equally

distributed between them. All cases of concurrent juris-

diction enumerated in Subsection (b) of Section 2 of this

Act may be instituted in or transferred between the dis-

trict courts of Wichita County and the County Court at

Law of Wichita County. However, no case may be trans-

ferred from one court to another without the consent of

the judge of the court to which it is transferred, and no

case may be transferred unless it is within the jurisdiction

of the court to which it is transferred.

as provided by Subsection (a) of this section and in eases

transferred to any of the courts in Wichita County by order

of the judge of another court, all processes, writs, bonds,

recognizances, or other obligations issued or made in the

cases shall be returned to and filed in the court to which

the transfer is made. All bonds executed and recogni-

zances entered into in those cases shall bind the parties for

their appearance or to fulfill the obligations of the bonds

or recognizances at the terms of the court to which the

eases are transferred as are fixed by law. All processes

issued or returned before transfer of the cases as well as

all bonds and recognizances before taken in the cases shall

be valid and binding as though originally issued out of the

court to which the transfer is made.

(d) The county judge and the judge of the County

Court at Law of Wichita County may freely exchange

benches and courtrooms with each other in matters within

their jurisdiction so that if one is ill, disqualified, or other-

wise absent, the other may hold court for him or her with-

App. 28

out the necessity of transferring the case involved. Either

judge may hear all or any part of a case pending in the

county court or county court at law, but only in matters

within their jurisdiction, and may rule and enter orders

on and continue, determine, or render judgment on all or

any part of the case without the necessity of transferring

it to his or her own docket. The district judges and the

judge of the County Court at Law of Wichita County may

freely exchange benches and courtrooms with each other

in matters within their concurrent jurisdiction so that if

one is ill, disqualified, or otherwise absent, another may

hold court for him or her without the necessity of trans-

ferring the case involved. Any of those judges may hear

all or any part of a case pending in the district court or

county court at law, but only in matters within their juris-

diction, and may rule and enter orders on and continue,

determine, or render judgment on all or any part of the

case without the necessity of transferring it to his or her

own docket. However, a judge may not sit or act in a case

unless it is within the jurisdiction of his or her court.

Kach judgment and order shall be entered in the minutes

of the court in which the case is pending. The provisions

providing for the exchange of benches by and between the

judges are cumulative of and in addition to the provisions

herein provided for the selection and appointment of a

special judge of the County Court at Law of Wichita

County.

Practice and procedure

Sec. 7. (a) Practice in the County Court at Law of

Wichita County shall conform to that preseribed by gen-

eral law for county courts, except that practice and pro-

cedure, rules of evidence, issuance of process and writs,

App. 29

and all other matters pertaining to the conduct of trials

and hearings in the County Court at Law of Wichita

County involving those matters of concurrent jurisdiction

enumerated in Subsection (b) of Section 2 of this Act shall

be governed by the provisions of this Act and the laws

and rules pertaining to district courts, general and special,

as well as county courts. If a case enumerated in Subsec-

tion (b) of Section 2 of this Act is tried before a jury,

the jury shall be composed of six members and shall be

privileged to render verdicts by a five to one margin in

civil eases and unanimous verdict in criminal cases.

(b) The laws which govern the drawing, selection,

service, and pay of jurors for county courts apply to the

County Court at Law of Wichita County.

district court or courts may, on request of either the county

judge or the judge of the county court at law, be made

available and shall serve for the week in either the county

court or county court at law.

Courtroom

See. 8. The commissions court of Wichita County

shall furnish and equip a suitable courtroom and office

space for the court created by this Act.

Seal

See. 9. The seal of the court created by this Act

shall be the same as that provided by law for county courts,

except the seal shall contain the words ‘‘County Court at

Law of Wichita County.”’

App. 30

Date of creation

Sec. 10. The County Court at Law of Wichita County

is created on January 1, 1982, or on a date determined by

the commissioners court by an order entered on its minutes,

after the provisions of Section 8 of this Act shall be fully

complied with, whichever date is earlier.

b |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.