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                  ANALYSIS OF SB543
                 Legislative Continuances




                        By Nicholas James
                          May 11, 2009




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A. SUMMARY .............................................................................. 3
B. RECOMMENDED AMENDMENTS.................................... 3
C. ISSUES: .................................................................................... 4
D. STATES WITH LEGISLATIVE EXEMPTIONS ............... 5
E. SUMMARY LISTING OF STATE CODES ........................ 6
F. LAWS FROM OTHERS STATES ........................................ 8
  1.      FLORIDA ............................................................................................................... 8
  2.      IOWA ...................................................................................................................... 8
  3.      KANSAS................................................................................................................. 8
  4.      MINESOTA ............................................................................................................ 9
  5.      NORTH CAROLINA ........................................................................................... 10
  6.      OKLAHOMA ....................................................................................................... 10
  7.      TEXAS .................................................................................................................. 11
  8.      VIRGINIA ............................................................................................................ 13
  9.      WISCONSIN .............................................................................................................. 13

G. ABUSES OF THE CONTINUANCE .................................. 14
  10.         State v. Chvala - Wis 2008 ............................................................................... 14
  11.         Waites v. Sondock, Texas 1977 ........................................................................ 16
  12.         ―Moldy‖ Joe Nixon – Texas 2003 .................................................................... 16
  13.         Judge Rudy Delgado - Texas ............................................................................ 20
  14.         Judge Bonnie Reed – Texas 1999 ..................................................................... 23
  15.         FORD MOTOR COMPANY 05-0374 Texas Supreme Court ......................... 26
  16.         IN RE Linda SMART 04-02-00905-CV– Texas 2002 ..................................... 36
  17.         Broesche v. Jackson 14-04-00548 CV ............................................................. 45
  18.         South Texas Watchdog Authority..................................................................... 46
  19.         Analysis of Texas Law by Texans for Public Justice ....................................... 51
       I. Summary................................................................................................................ 51
       II. Introduction .......................................................................................................... 52
       III. Continual Continuances ...................................................................................... 55



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     IV. Defendants Dominate Continuances................................................................... 57
     V. The Legislature's Continuance Kings .................................................................. 59
     VI. Serial Continuances ............................................................................................ 61
     VII. Personal Continuances ...................................................................................... 63
20................................................................................................................................... 65

 A. SUMMARY
       Louisiana will be the ONLY state with this generous a legislative exemption!
       Texas has already gone through this fight in 2003 and has limited their legislative
        exemptions because of abuse by legislators.
       Legislative exemptions have a financial value to attorney-legislators because
        wealthy clients will hire them not for knowledge of the law but solely to obtain
        delays in their cases.
       The extension of the 60-day exemption to all out-of-legislature committee
        hearings means that powerful legislatures who control their own calendar will be
        exempt from all court, administrative, or for the duration of their terms in office!
 

 B. RECOMMENDED AMENDMENTS
             1. Require that the exemptions be discretionary with the courts – See
                Wisconsin ruling in Chvala. Otherwise the law violates the ‗separation of
                powers doctrine‘.
             2. Mandatory requirement for all legislative exemptions to be filed with the
                Louisiana Ethics Board within 3 days of being filed with the court.
             3. An exemption to allow the Louisiana Ethics Board to conduct hearings on
                legislators that have been misbehaving.
             4. An exemption for all protective orders allowing the court discretion to
                refuse the continuance in the interest of justice just like the Texas statute.
             5. An exemption for all criminal cases allowing the court discretion to refuse
                the continuance in the interest of justice.
             6. An exemption baring the use of the exemption in all felony criminal cases
                where a legislator IS A PARTY.
             7. An exemption baring the use of the exemption in all administrative cases
                allowing the administrator to schedule the hearing around the legislators
                schedule.
             8. An amendment to shorten the peremptory delay to only 15 days after a
                legislative session; a special session or a constitutional convention (from
                60 days) just like Florida statute.


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       9. An amendment to shorten the peremptory delay to only 1 day before and 1
          day after any committee work (from 0 days before to 60 days after) just
          like the Florida statute.
       10. A provision granting the tolling of a right to a speedy trial and that the
           legislative exemption shall not act as a waiver to a speedy trial just like the
           Florida statute.
       11. Allow the courts discretion in cases where the attorney is hired within 30
           days before the suit is set for trial just like the Texas Statute.
       12. Require that the party filing for the legislative exemption must file an
           affidavit starting the grounds for the continuance. Require that the
           affidavit must contain a declaration stating that it is the attorney‘s
           intention to participate actively in the preparation or presentation of the
           case and that the attorney has not taken the case for the purposes of
           obtaining a continuance under this section just like the Texas Statute.

C. ISSUES:
1. Violates doctrine of separation of powers unless discretionary to the courts – State
   v. Chvala 2003 WI App 257
2. No delay allowed when enforcing child support - Due process exception from the
   mandatory continuance requirement exists where irreparable harm or injury to a
   substantial right. Waites v. Sondock, 561 S.W.2d 772, 776 (Tex. 1977).




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   D. STATES WITH LEGISLATIVE EXEMPTIONS
This list was provided by the National Conference of State Legislatures. They recognize
that was dated and there may be more states with legislative exemptions. An article from
Texas in 2003 also only cited 9 states providing the exemption.

       Hi Nick,


       As I mentioned on the phone, we do have a dated list of statutes that pertain to legislative
       continuances. I have not checked these statutes to see if they are still current or
       accurate. The states and statute cites are:


       Florida §11.111
       Iowa Civil Procedure Rule 58
       Kansas §46-125-128
       Louisiana §13:4163
       Minnesota § 3.16
       North Carolina § 1A-1, Rule 40; § 8-83; § 15A-952
       Oklahoma § 12-667
       Texas § 30.003
       Virginia § 30-5


       I hope this is helpful.


       Natalie O'Donnell
       Senior Policy Specialist
       NCSL
       303-364-7700
       natalie.odonnell@ncsl.org




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              E. SUMMARY LISTING OF STATE CODES
STATE       CODE        TYPE                    Legislative          Committee          Notes
                                                Session              Work
                                      Mandat     Days     Days        Days     Days
                                      ory       before    after      before    after
Louisiana                             Yes         15        60         0      Reaso
(current)                                                                     nable
Louisiana                             Yes         15        60         0         60
– SB543
Florida     11.111      Any           Yes         15        15         1         1      A party;
                        court;                                                          a witness; scheduled to appear
                        municipa                                                        Does not waive right of speedy
                        lity;                                                           trial; right to speedy trial tolled;
                        agency                                                          May proceed if a witness
Iowa        1.307       Any           Yes         0           0       No        No
                        court                                        provis   provisi
                                                                      ion       on
Kansas      46-125;     Any trial; Yes            15        10        No        No    Either employed as attorney;
            46-126;     hearing;                                     provis   provisi interested party; deposition at
            46-127;     applicatio                                    ion       on    discretion of court
            46-128      n
Minnesota   3.16        Attend as     Yes         0           0        0         0
                        a witness
North       Rule 40     Any trial     Judges      0           0       NA       NA
Carolina                              discret
                                      ion
Oklahoma    12-667                    Yes         0         30        NA       NA       Grants right to a new trial; requires
                                                                                        affidavit
            12-668
Texas       30-003      Any           Yes/N       30        30        NA       NA       Excludes temporary; party must
            &           criminal      o                                                 file affidavit; discretionary with
            84.005      or civil                                                        court if hired 15 days before
                        suit                                                            criminal trial; affidavit; Must file
                                                                                        Texas Ethics Commission within 3
                                                                                        days of filing with court
Virginia    30-5                                  30        30         1         1      Any action or court proceeding
                                                                                        including appeals and Supreme
                                                                                        Court of Virginia
Others



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Wisconsin   757.13                 NO      0         0        NA   NA    Violates the doctrine of separation
                                                                         of powers – State v. Chvla 2003
                                   See                                   WI App 257, 268
                                  note.




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    F. LAWS FROM OTHERS STATES

1. FLORIDA
Title III LEGISLATIVE BRANCH; COMMISSIONS
Chapter 11 LEGISLATIVE ORGANIZATION, PROCEDURES, AND STAFFING
11.111 Continuance of certain causes for term of Legislature and period of time
prior and subsequent thereto and committee workdays.--Any proceeding before any
court, municipality, or agency of government of this state shall stand continued, without
the continuance being charged against any party, during any session of the Legislature
and for a period of time 15 days prior to any session of the Legislature and 15 days
subsequent to the conclusion of any session of the Legislature, and during any period of
required committee work and for a period of time 1 day prior and 1 day subsequent of the
Legislature is a party or witness or is scheduled to appear before any municipal
government, administrative board, or agency, when notice to that effect is given to the
convening authority by such member. The time period for determining the right to a
speedy trial shall be tolled during the period of the continuance, but the providing of such
a continuance shall not act as a waiver to the right to a speedy trial. The immunity herein
granted shall, upon the filing of a notice by the witness, extend to any member not an
attorney who is engaged in any proceeding before any court or any state, county, or
municipal agency or board in a representative capacity for any individual or group or as a
witness in any proceeding. After said notice has been filed by a member of the
Legislature called as a witness, the proceeding may proceed notwithstanding such notice
if the party calling such member as a witness shall agree.


History.--s. 1, ch. 15995, 1933; CGL 1936 Supp. 4356(1); s. 1, ch. 61-176; s. 1, ch. 67-2(X); s. 1, ch. 70-
28; s. 1, ch. 77-119; s. 9, ch. 96-318.
Note.--Former s. 54.08.
A Senior Policy Specialist at the NCSL provided me with their list of the 9 states that


2. IOWA
Rule 1.307 Member of general assembly. No member of the general assembly shall be
held to move or answer in any civil action in any court in this state while such general
assembly is in session. [Report 1943; Report 1978, effective July 1, 1979; April 30, 1987,
effective July 1, 1987; November 9, 2001, effective February 15, 2002]


3. KANSAS


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46-125. Privileges of members of the legislature in court proceedings. That from and
after the fifteenth day preceding the day on which any regular or special session of the
legislature of this state shall convene, and until the tenth day after adjournment is taken
sine die, members of the legislature of this state shall not be required to appear in any
court in this state and participate in the trial of any action therein pending, or the hearing
of any motion, application or other proceeding in which such member is employed as
attorney or interested as a party; and no such member shall be required to attend the
taking of any depositions in any action pending in any court in this state in which he is
employed during the whole of said period of time, except in cases where the court shall,
in its discretion, make an order authorizing the taking of such deposition.
   History: L. 1915, ch. 86, § 1; R.S. 1923, 46-125; L. 1927, ch. 233, § 1; March 11.
 46-126. Continuance of cases. That any member of the legislature who may have a
case pending in any court in this state, may have the same continued until the legislature
shall adjourn sine die in the manner hereafter provided for.
   History: L. 1915, ch. 86, § 2; Jan. 28; R.S. 1923, 46-126.
46-127. Judicial notice of personnel of legislature; waiver of privilege. That all
judges of the courts of this state shall take judicial notice of the personnel of the
legislature, and it shall be the duty of said judge to continue the trial of any cause in
which any member of the legislature appears as attorney of record or party, so that said
cause shall not be tried and no motion, application or other proceedings shall be taken or
heard or judgment rendered therein during a period beginning fifteen days before the
legislature convenes and until the expiration of ten days after the legislature shall have
adjourned sine die, unless such privilege is waived in open court or in writing by such
member.
   History: L. 1915, ch. 86, § 3; R.S. 1923, 46-127; L. 1927, ch. 233, § 2; March 11.
46-128. Deposition; power of judge to prevent abuse of privileges. Any deposition
taken during the time mentioned and referred to in K.S.A. 46-125, without leave of court
shall not be read in evidence on behalf of the party taking the same without the consent of
any such attorney: Provided, That the judge shall have full discretionary power to prevent
any abuse of the privileges herein granted.
   History: L. 1915, ch. 86, § 4; Jan. 28; R.S. 1923, 46-128.


4. MINESOTA

3.16 Members, officers and attorneys excused from court duty.


No member or officer of, or attorney employed by, the legislature shall be compelled to
attend as a witness in a court of this state during a session of the legislature, or while
attending a meeting of a legislative committee or commission when the legislature is not
in session unless the court in which the action is pending orders it, upon sufficient


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showing and with the consent of the presiding officer of the body of which the witness is
an employee or the consent of the body of which the witness is a member. No cause or
proceeding, civil or criminal, in court or before a commission or an officer or referee of a
court or commission or a motion or hearing on the cause or proceeding, in which a
member or officer of, or an attorney employed by, the legislature is a party, attorney, or
witness shall be tried or heard during a session of the legislature or while the member,
officer, or attorney is attending a meeting of a legislative committee or commission when
the legislature is not in session. The matter shall be continued until the legislature or the
committee or commission meeting has adjourned.
The member, officer, or attorney may, with the consent of the body of the legislature of
which the person is a member, officer, or employee, waive this privilege. The cause or
proceeding, motion, or hearing may then be tried or heard at a time that will not conflict
with legislative duties.


HIST: (40) 1909 c 51 s 1; 1925 c 18 s 1; 1927 c 47 s 1; 1929 c 19 s 1; 1941 c 45 s 1; 1957
c 183 s 1; 1986 c 444; 1988 c 469 art 1 s 1


5. NORTH CAROLINA
Rule 40. Assignment of cases for trial; continuances.
(a)      The senior resident superior court judge of any superior court district or set of
districts as defined in G.S. 7A-41.1 may provide by rule for the calendaring of actions for
trial in the superior court division of the various counties within his district or set of
districts. Calendaring of actions for trial in the district court shall be in accordance with
G.S. 7A-146. Precedence shall be given to actions entitled thereto by any statute of this
State.
(b)     No continuance shall be granted except upon application to the court. A
continuance may be granted only for good cause shown and upon such terms and
conditions as justice may require. Good cause for granting a continuance shall include
those instances when a party to the proceeding, a witness, or counsel of record has an
obligation of service to the State of North Carolina, including service as a member of the
General Assembly or the Rules Review Commission. (1967, c. 954, s. 1; 1969, c. 895, s.
9; 1985, c. 603, s. 8; 1987 (Reg. Sess., 1988), c. 1037, s. 43; 1997-34, s. 10.)


6. OKLAHOMA
§12667. Continuances Power to grant Costs Continuances and appeals when member
of Legislature is party or attorney.
The court may, for good cause shown, continue an action at any stage of the proceedings
upon terms as may be just; provided, that if a party or his attorney of record is serving as
a member of the Legislature or the Senate, sitting as a court of impeachment, or within


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thirty (30) days after an adjournment of a session of the Legislature, such fact shall
constitute cause for continuance of the case, and it is mandatory that the court shall grant
such continuance upon motion whether such attorney may have been employed before or
during the session of the Legislature, and the court shall have no power to exercise its
discretion as to the granting of such continuance, and all motions, demurrers and
preliminary matters to be heard by the court, the refusal to grant which shall constitute
error, and entitle such party to a new trial as a matter of right. When a continuance is
granted on account of the absence of evidence, it shall be at the cost of the party making
the application unless the court otherwise order. And when any litigant has given notice
of appeal from any judgment of any court of record in this state to the Supreme Court or
Criminal Court of Appeals and the time for doing any act to perfect such appeal has, or
does hereafter lapse during the session of the Legislature, whether regular or special, and
the said litigant is a member of the Senate or House of Representatives, of the State of
Oklahoma, in such session, or his attorney of record is such member, such litigant or
attorney shall have such time after the adjournment of the session of the Legislature to
perform such act and complete his appeal as he had at the commencement of the session
of the Legislature, of which he or his attorney of record was a member, and all acts done
in the perfection of such appeals shall be as valid as if done within the time provided.
R.L. 1910, § 5044. Amended by Laws 1915, c. 236, p. 556, § 1; Laws 1919, c. 263, p.
374, § 1; Laws 1935, p. 2, § 1; Laws 1937, p. 1, § 1; Laws 1955, p. 134, § 1.


§12668. Affidavit for continuance.
A motion for a continuance, on account of the absence of evidence, can be made only
upon affidavit, showing the materiality of the evidence expected to be obtained, and that
due diligence has been used to obtain it, and where the evidence may be; and if it is for an
absent witness, the affidavit must show where the witness resides, if his residence is
known to the party, and the probability of procuring his testimony within a reasonable
time, and what facts he believes the witness will prove, and that he believes them to be
true. If thereupon, the adverse party will consent that on the trial the facts, alleged in the
affidavit shall be read and treated as the deposition of the absent witness, or that the facts
in relation to other evidence shall be taken as proved to the extent alleged in the affidavit,
no continuance shall be granted on the ground of the absence of such evidence.
R.L. 1910, § 5045.


7. TEXAS
§ 30.003. LEGISLATIVE CONTINUANCE.
   (a) This section applies to any criminal or civil suit, including matters of probate, and
   to any matters ancillary to the suit that require action by or the attendance of an
   attorney, including appeals but excluding temporary restraining orders.
   (b) Except as provided by Subsections (c) and (c-1), at any time within 30 days of a
   date when the legislature is to be in session, at any time during a legislative session,


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   or when the legislature sits as a constitutional convention, the court on application
   shall continue a case in which a party applying for the continuance or the attorney for
   that party is a member or member-elect of the legislature and will be or is attending a
   legislative session. The court shall continue the case until 30 days after the date on
   which the legislature adjourns.
   (c) Except as provided by Subsection (c-1), if the attorney for a party to the case is a
   member or member-elect of the legislature who was employed on or after the 30th
   day before the date on which the suit is set for trial, the continuance is discretionary
   with the court.
   (c-1) If the attorney for a party to any criminal case is a member or member-elect of
   the legislature who was employed on or after the 15th day before the date on which
   the suit is set for trial, the continuance is discretionary with the court.
   (d) The party seeking the continuance must file with the court an affidavit stating the
   grounds for the continuance. The affidavit is proof of the necessity for a continuance.
   The affidavit need not be corroborated.
   (e) If the member of the legislature is an attorney for a party, the affidavit must
   contain a declaration that it is the attorney's intention to participate actively in the
   preparation or presentation of the case and that the attorney has not taken the case for
   the purpose of obtaining a continuance under this section.
   (f) The continuance provided by Subsection (b) is one of right and may not be
   charged against the party receiving it on any subsequent application for continuance.
   (g) If the attorney for a party seeking a continuance under this section is a member or
   member-elect of the legislature, the attorney shall file a copy of the application for a
   continuance with the Texas Ethics Commission. The copy must be sent to the
   commission not later than the third business day after the date on which the attorney
   files the application with the court.


Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 1991, 72nd Leg., ch. 304, § 3.13, eff. Jan. 1, 1992; Acts
2003, 78th Leg., ch. 9, § 1, eff. April 24, 2003; Acts 2003, 78th
Leg., ch. 249, § 5.09, eff. Sept. 1, 2003.


§ 84.005. LEGISLATIVE CONTINUANCE. If a proceeding for which a legislative
continuance is sought under Section 30.003, Civil Practice and Remedies Code, includes
an application for a protective order, the continuance is discretionary with the court.


Added by Acts 1999, 76th Leg., ch. 62, § 6.10(a), eff. Sept. 1,
1999.




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8. VIRGINIA
§ 30-5. Continuance or time for filing pleading, etc., where party or attorney is connected
with General Assembly or Division of Legislative Services.
Any party to an action or proceeding in any court, including the Court of Appeals and the
Supreme Court of Virginia, commission or other tribunal having judicial or quasi-judicial
powers or jurisdiction, who is an officer, employee or member of the General Assembly,
employee of the Division of Legislative Services, or who has, prior to or during the
session of the General Assembly, employed or retained to represent him in such action or
proceeding an attorney who is an officer, employee or member of the General Assembly,
or employee of the Division of Legislative Services, shall be entitled to a continuance as
a matter of right (i) during the period beginning thirty days prior to the commencement of
the session and ending thirty days after the adjournment thereof, and (ii) during a period
beginning one day prior to the meeting date of any reconvened or veto session or of any
commission, council, committee or subcommittee created by the General Assembly at
which such officer, employee or member is scheduled to attend and ending one day after
the adjournment of such meeting; however, no continuance need be granted under clause
(ii) unless it shall have been requested in writing at least three days prior to the first day
for which the continuance is sought and filed with the court. The requesting party, when
practicable, shall strive to notify all other parties to the proceeding of such request.
Any pleading or the performance of any act relating thereto required to be filed or
performed by any statute or rule during the period beginning thirty days prior to the
commencement of the session and ending thirty days after the adjournment of the session
shall be extended until not less than thirty days after any such session. The failure of any
court, commission or other tribunal to allow such continuance when requested so to do or
the returning of such filing or act during the period hereinabove specified shall constitute
reversible error; provided that this section shall not prevent the granting of temporary
injunctive relief, or the dissolution or extension of a temporary injunction, but the right to
such relief shall remain in the sound discretion of the court or other such tribunal.
(Code 1919, § 298; 1926, p. 18; 1934, p. 370; 1940, p. 363; 1952, c. 234; 1960, c. 147;
1973, cc. 242, 322; 1984, c. 703; 1987, c. 192; 2002, cc. 584, 617.)



9.    WISCONSIN


757.13 Continuances; legislative privilege. When a witness, party or an attorney
for any party to any action or proceeding in any court or any commission, is a member of
the Wisconsin legislature, in session, that fact is sufficient cause for the adjournment or
continuance of the action or proceeding, and the adjournment or continuance shall be
granted without the imposition of terms.

History: 1977 c. 187 s. 96; Stats. 1977 s. 757.13; 1979 c. 34.




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This section would violate the doctrine of separation of powers if construed
to mandate the grant of a continuance or adjournment. Courts should
consider, in the sound exercise of their discretion, that a witness, party, or
party‘s attorney is a member of the legislature in session when that person
seeks a continuance or adjournment for that reason and should accommodate
the schedule of the legislature consistent with the demands of fairness and
efficiency in the particular case. State v. Chvala, 2003 WI App 257, 268
Wis. 2d 451, 673 N.W.2d 401, 03-0746.

   G. ABUSES OF THE CONTINUANCE

10. State v. Chvala - Wis 2008
SOURCE:
http://www.wisbar.org/AM/Template.cfm?Section=Wisconsin_Lawyer&template=/CM/
ContentDisplay.cfm&contentid=34163
Separation of Powers
Continuance of Court Proceedings for Legislators While the Legislature is in Session -
Wis. Stat. Section 757.13
State v. Chvala, 2003 WI App 257 (filed 13 Nov. 2003) (ordered published 17 Dec.
2003)
The defendant, a senator in the Wisconsin Legislature, was charged with extortion,
misconduct in public office, and violations of campaign finance statutes. The issue on
appeal was whether Wis. Stat. section 757.13 prohibits the trial court from scheduling the
trial in this case before the last general business floor session of the legislature concludes.
The statute provides that "when a witness, party or an attorney for any party to any
action or proceeding in any court or any commission, is a member of the Wisconsin
legislature, in session, that fact is sufficient cause for the adjournment or continuance of
the action or proceeding, and the adjournment or continuance shall be granted without
the imposition of terms."
In a decision authored by Judge Vergeront, the court of appeals concluded that this
statute violates the doctrine of separation of powers if it is construed to mandate the trial
court to grant the defendant's request that the trial not be scheduled until the conclusion
of the legislative session. This is so because, if construed as mandatory, the statute would
unduly burden the judiciary or substantially interfere with the constitutional exercise of
its authority over the matter of continuances and adjournments. However, the court
concluded that there is a reasonable construction of the statute that would render it
constitutional. It held that "the statute may be reasonably construed to allow a court to
exercise its discretion on whether to grant or deny a continuance or adjournment when a
witness, party, or party's attorney is a member of the legislature in session" (¶ 24).



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"We therefore construe the statute to direct the courts to consider, in the sound exercise
of their discretion, that a witness, party, or party's attorney is a member of the legislature
in session when such person seeks a continuance or adjournment for that reason. In
keeping with the recognition that the matter of continuances or adjournments for
members of the legislature in session is encompassed within the constitutional powers of
the legislature, and that legislators' attendance when the legislature is in session is critical
to the ability of the legislature to carry out its constitutional powers, courts should
carefully consider requests for continuances or adjournments; and courts should
accommodate the schedule of the legislature consistent with the demands of fairness and
efficiency in the particular case" (¶ 25).
Full pdf is here: http://www.wicourts.gov/html/ca/03/03-0746.htm
Excerpts from the opinion


            VERGERONT, J. The criminal complaint in this action charges Charles
        Chvala, a senator in the Wisconsin Legislature, with extortion, misconduct in
        public office, and violations of campaign finance statutes. The issue on appeal is
        whether, as Chvala contends, WIS. STAT. § 757.13 (2001-02) prohibits the trial
        court from scheduling the trial in this case before the last general business floor
        session ends on March 11, 2004. Section 757.13 provides:
                Continuances; legislative privilege. When a witness, party or an attorney
                for any party to any action or proceeding in any court or any commission,
                is a member of the Wisconsin legislature, in session, that fact is sufficient
                cause for the adjournment or continuance of the action or proceeding, and
                the adjournment or continuance shall be granted without the imposition of
                terms.
        ¶1                 We conclude that WIS. STAT. § 757.13 violates the doctrine of
        separation of powers if it is construed to mandate the court to grant Chvala‘s
        request that the trial not be scheduled until after March 11, 2004. We therefore
        construe the statute to direct courts to consider, in the sound exercise of their
        discretion, that a witness, party, or party‘s attorney is a member of the legislature
        in session when such persons request a continuance or adjournment for that
        reason. Because the trial court correctly construed § 757.13 in denying Chvala‘s
        request that the trial be scheduled after March 11, 2004, we affirm the trial court‘s
        order.
        …
        22                Our conclusion is consistent with the great majority of cases
        from other states in which courts have held that statutes mandating continuances
        during legislative sessions violate the separation of powers doctrine by interfering
        with the judiciary‘s exercise of its powers: see McConnell v. State, 302 S.W.2d
        805, 808 (Ark. 1957); Thurmond v. Superior Court, 427 P.2d 985, 987-88 (Cal.
        1967); A.B.C. Business Forms, Inc. v. Spaet, 201 So. 2d 890, 892 (Fla. 1967);
        Booze v. District Court, 365 P.2d 589, 592 (Okla. Crim. App. 1961); Lemoine v.
        Martineau, 342 A.2d 616, 620 (R.I. 1975); Williams v. Bordon’s, Inc., 262


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       S.E.2d 881, 884 (S.C. 1980); Granai v. Witters, 194 A.2d 391, 393 (Vt. 1963).
       The only case brought to our attention that has reached a different result is
       Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560, 561
       (Tex. 1963), in which the court held that the Texas statute mandating a
       continuance if a party or party‘s attorney ―will be or is in actual attendance on a
       Session of the [legislature]‖ did not violate the separation of powers provision in
       that state‘s constitution. However, in a later case the same court held that the
       statute could not be constitutionally applied where ―the party opposing the
       continuance alleges that a substantial right will be defeated or abridged by delay‖;
       in such cases the trial court had a duty to conduct a hearing on those allegations
       and to deny a continuance if the allegations were meritorious. Waites v. Sondock,
       561 S.W.2d 772, 776 (Tex. 1977).


11. Waites v. Sondock, Texas 1977
SOURCE: http://bulk.resource.org/courts.gov/states/Tex.App.04/8174.html
Tex. Civ. Prac. & Rem. Code Ann. § 30.003 (Vernon 1997). Apart from the 10 day
exception set forth in subsection (c) of section 30.003, which is not applicable in this
case, a due process exception from the mandatory continuance requirement exists where
the non-movant can show irreparable harm or injury to a substantial right. Waites v.
Sondock, 561 S.W.2d 772, 776 (Tex. 1977).


12. “Moldy” Joe Nixon – Texas 2003
SOURCE: TJP article from 2003


                        News Release
For Immediate Release: November 14, 2003

For Information: 512-472-9770

      Special-Session Lawmakers Used A Legislative Perk To Delay 33
       Court Cases.
      ‘Moldy Joe’ Nixon Hit the Brakes on the Wheels of Justice Nine
       Times.

Austin, TX: Texas lawmaker Joe Nixon, who is to be honored today by the Texas Civil
Justice League (TCJL), used a perk of his office to delay more Texas court cases than any
other legislator, new Texans for Public Justice research reveals.



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Texas law allows lawmakers who are attorneys for cases in state courts to obtain
―legislative continuances‖ that automatically postpone those cases for the period starting
30 days before a legislative session and ending 30 days after the session ends.
Continuance season for the 2003 regular session opened on December 15, 2002. The
three subsequent special sessions called for Tom DeLay‘s redistricting greatly extended
this year‘s continuance season, which ended this week.
Unfortunately, nobody knows how many continuances lawmakers filed over the past 11
months.1 Under a reform from 2003‘s regular session, lawmakers first had to begin
disclosing continuance requests to the Texas Ethics Commission starting September 1st.
Since then, 12 lawmakers have filed ―legislative continuances‖ to delay 33 Texas court
cases. The No. 1 "court clogger" is Houston Rep. Joe Nixon, whom TCJL is honoring
today for his work in the regular session to shield businesses from lawsuits. Stopping the
clock on nine court cases, Nixon accounted for 27 percent of all reported special-session
continuances.
Rep. Nixon already applied for—and received—a $300,000 civil-justice award from
Farmers Insurance to settle mold remediation claims on his own home. A company
whistleblower says that Farmers granted Nixon claims that it routinely denies to other
customers. This year Nixon also:

      Ostracized ―frivolous‖ mold claims on his legislative website; and
      Obtained a continuance for an insurer that denied mold claims made by a Baptist
       church.


―Justice delayed is justice denied,‖ said Texans for Public Justice Director Craig
McDonald. ―If the Civil Justice League must give this court clogger a civil-justice award,
how about a bronzed bottle of Drano?‖
Representatives Roberto Alonzo of Dallas and Ron Wilson of Houston placed in the next
continuance heat, delaying five court cases apiece in the past 10 weeks.



                   Texas Court Cases Delayed By Lawmakers
                           Since September 1, 2003
                                                                Continuances
                Legislator        Party      Home       Dist. Since Sept. 1

                Joseph Nixon        R     Houston       H-133             9

                Roberto Alonzo      D     Dallas        H-104             5

                Ron Wilson          D     Houston       H-131             5

                Harold Dutton       D     Houston       H-142             3

                Jim Dunnam          D     Waco          H-57              2


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                 Ruben Hope, Jr.   R     Conroe        H-16            2

                 Robert Puente     D     San Antonio H-119             2

                 Chris Harris      R     Arlington      S-9            1

                 D. Bryan Hughes   R     Mineola       H-5             1

                 Todd Smith        R     Euless        H-92            1

                 Jack Stick        R     Austin        H-50            1

                 Will Hartnett     R     Dallas        H-114           1

                     TOTAL:                                          33
Altogether, lawmakers delayed 15 cases in Houston's Harris County and five more in
Dallas County. No other county suffered more than two legislative-continuance delays in
this period.
 Lawmaker-Delayed
  Cases By County
Texas          Continuances
County         Since Sept. 1

Harris                     15

Dallas                      5

Bexar                       2

McLennan                    2

Tarrant                     2

Travis                      2

Fannin                      1

Galveston                   1

Hill                        1

Jefferson                   1

Montgomery                  1

   TOTAL:               33
Facing a blizzard of fen-phen heart-damage claims—including a $1.4 million verdict
from a Beaumont jury last month—the Wyeth drug company is the only defendant that


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had two special-session continuances filed on its behalf since September 1st. Rep. Ruben
Hope filed both of them.

Legislator
Last
Name                 Court              County                   Wyeth Case

             Co. Court of Law No                    Donna Franz & Allan Franz v. Wyeth et.
Hope                                    Galveston
             3                                      al.

             State District Court
Hope                                    Jefferson Jerry Coffey v. Wyeth
             172
The party most often hit by continuance delays was none other than the State of Texas,
whose own lawmakers filed nine continuances on behalf of defendants facing state
charges.
         Lawmakers Delayed Nine Cases Brought By the State of Texas
Legislator             Court                 County                       Case

                                                          State of Texas v Alexander N.
Alonzo       Co. Criminal Court            Fannin
                                                          Brenes

             Co. Criminal Court No.
Alonzo                                     Tarrant        State of Texas v. Valente Guel
             287

                                                          State of Texas v Abraham
Alonzo       State District Court 194      Dallas
                                                          Rinconcillo

                                                          State of Texas v. Jose Nicolas
Alonzo       Carrollton Municipal Court Dallas
                                                          Ramirez

             State Ofc. of Admin                          Texas DPS v. Jorge Enrique
Alonzo                                     Dallas
             Hearings                                     Charles

                                                          State of Texas v. El Amin
Dunnam       Waco Municipal Court          McLennan
                                                          Muhammad

                                                          State of Texas v. Michael
Dutton       State District Court 176      Harris
                                                          Selexman

             North Oak Ridge Mun'l
Wilson                                     Montgomery State of Texas v. Darrell Beaulier
             Court

             State Ofc. of Admin
Wilson                                     Travis         Texas DPS v. Alan Freeman
             Hearings




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1
 TPJ sued two legislators in recent years (Rep. Gabi Canales and ex-Rep. RickGreen) in an
effort to force all lawmakers to disclose continuances under the Texas Public Information Act.
http://www.tpj.org/page_view.jsp?pageid=360&pubid=204


13. Judge Rudy Delgado - Texas

No Work and All Pay for Suspended Judge




By David Robledo



As the criminal charges against judge Rudy Delgado drag on, Hidalgo
County taxpayers have to foot the bill



It’s been more than a year and a half since state District Judge Rudy Delgado has sat in his own
courtroom or heard a single case, but he’s still earned $222,000 in that time. Delgado’s been off
the bench since he was suspended after being indicted on felony charges of evading arrest and
misuse of official information – making him the longest-standing and most expensive state judge
currently suspended in Texas. The State Committee on Judicial Conduct and the Hidalgo County
Commissioners Court realize that the public can get dissatisfied quickly when suspended judges
receive full salaries and car allowances but perform none of the work they are paid to do. But until
the complicated accusations against Delgado play out in court, there’s nothing the state or county
can do but wait, and keep cutting Delgado’s $11,708 monthly checks.


THE TRAFFIC STOP THAT STARTED IT ALL
Near midnight on September 21, 2002, Delgado was arrested on Edinburg’s rural Monte Cristo
Road while driving his black, three-quarter-ton GMC Sierra with a license plate that was clearly




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marked “State Judge.”
  Edinburg police officer Edgar Rivas pulled Delgado over on suspicion of driving while
intoxicated.
  The officer, according to court records, witnessed Delgado driving on the wrong side of the road
and into oncoming traffic – forcing other cars to veer off the highway. Rivas pursued Delgado for
some time with his police lights on. After Delgado finally stopped, he fell down while trying to exit
his GMC and smelled strongly of alcohol.
  The judge refused to take a Breathalyzer test to determine his blood alcohol level, and was
hauled in to the Edinburg Police Department’s jail.
  But even though that initial DWI charge was thrown out of court by a visiting judge, Hidalgo
County District Attorney Rene Guerra refused to let the issue slide. Guerra charged Delgado with
evading arrest and misuse of official information just before the DWI charge was dropped. This
resulted in a 17-month paid suspension from office for Delgado, a removal which has clogged up
Hidalgo County state court dockets and cost taxpayers nearly $500,000 in administrative
expenses.


THE LEGAL MANEUVERING BEGINS
Within hours after his arrest, Delgado was released on a personal recognizance bond, and police
said he soon obtained a copy of the police report without requesting it through the proper
channels for the release of public information. The way Delgado supposedly got his hands on that
police report would later earn him an indictment for a felony count of misuse official information, a
charge that’s pending along with his felony evading arrest charge.
  An Hidalgo County grand jury initially refused to indict Delgado on evading arrest, but did indict
him on a misdemeanor DWI charge. According to state rules, any felony conviction, or
misdemeanor conviction involving misuse of public funds, would permanently remove him from
office,
  Visiting Cameron County Court at Law #2 Judge Daniel Robles, a former co-worker with
Delgado, presided over the initial DWI case and started it off by removing prosecutor Hidalgo
County District Attorney Rene Guerra and appointing a special prosecutor.
  The defense argued that several of Guerra’s assistant DAs had seen Delgado sober the same
day he was arrested, and that Guerra might have used them as witnesses in the case.
  Guerra was removed from the case temporarily and was forced to appeal first to the 13th Court
of Appeals and then to the Texas Court of Criminal Appeals to get reinstated as prosecutor. Soon
after his reinstatement, defense attorneys filed a motion for a legislative continuance, arguing that
co-counsel Jim Solis (D-Harlingen) needed time to tend to his duties as a state representative.
  Robles granted the legislative continuance. But that request was merely one in hordes of
motions filed by the defense, which ranged from motions to quash evidence to motions to



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suppress witness statements and more. Despite what appeared to be constant activity in the
case, Robles nonetheless granted defense attorneys’ motion to drop the case on May 5, 2005,
based on the defense’s argument that Delgado had been denied his right to a speedy trial.
 Guerra was incensed, and made public claims that Delgado’s friendship with Judge Robles was
the real reason for the dismissal.
 Delgado’s attorney Al Alvarez had previously made statements that Guerra had an obsession
with Delgado and would stop at nothing to remove him from the bench. With a successful felony
prosecution, Delgado would lose his right to be a judge, and would be immediately and
automatically removed from his post.
 While the DWI case lingered in county court, Guerra was in fact hard at work trying to bring a
felony charge against Delgado. In February 2005, three months before Robles would drop the
DWI charge, Delgado was indicted on felony counts of evading arrest and misuse of official
information.
 That month, the State Commission on Judicial Conduct suspended Delgado, but did not
suspend his $125,000 state salary. The Hidalgo County Commissioner’s Court also allowed
Delgado to continue receiving his $25,000 annual county stipend, as well as his $8,000-a-year
car allowance – even though, as a condition of his suspension, Delgado is not allowed to conduct
any business as a judge, and is not even allowed to perform marriages.
 The evading arrest and misuse of official information case was assigned to the 139th state
District Court of Judge Bobby Flores, whose courtroom lies just down the hall from Delgado’s
93rd.
 The District Attorney said the two judges are known friends, and tried to recuse Flores from the
case. The issue has been heated, with Delgado’s defense attorneys trying to stop Guerra from
removing Flores. The 13th Court of Appeals, however, decided in June 2005 against defense
attorneys’ motion to stop the recusal. Defense filed for a rehearing on the issue the following
month – a rehearing that to date has not yet happened.
 And complicating everything even more, two years after his DWI arrest, Delgado sued the
arresting officer, the Edinburg police chief, the City of Edinburg and numerous officials – claiming
that the arrest was political retribution and that the arresting officer used unecessary force.


THE DELAYS KEEP COMING
“Unfortunately we are simply in a waiting game here,” said Rene Guerra.
 The State Commission on Judicial Conduct said delay is a necessary part of many felony cases
against judges.
 The SCJC in fact has its own investigation into the situation, but it cannot make an independent
decision until criminal cases play out, said Seana Willing, the commission’s executive director.
 “A lot of information about the history of the case, the politics, and the relationship between the


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judge and the DA … were made available to the Commission at a post-suspension hearing
conducted last fall at the judge’s request to have his suspension lifted,” Willing said.
  But the State Commission on Judicial Conduct refused to lift the suspension.
Willing said she is aware that a suspension can place a burden on a courthouse when other
judges are forced to pick up the slack and county budgets are stretched to cover the related costs
when a judge is suspended with pay.
  Hidalgo County Commissioner Pct. 2 Tito Palacios said that the commissioners court also
realizes that a lot of money is being spent on Delgado with no return. But he said commissioners
also have to wait.


THE CASE THAT IS FAR FROM OVER
But with the District Attorney dead set on removing presiding Judge Bobby Flores from the case,
and Flores refusing to step down, the long road to getting this case to trial may be stalled
indefinitely.
  Flores has not denied that he and Delgado may be friends, but he has said that Guerra’s
insistence on recusing him insults his ability to remain objective concerning legal questions.
Delgado himself continues to make the situation more and more complicated, with his lawsuit
against the police and the city, and dozens of motions that stall the felony case.
  But with the cost to taxpayers rising higher and higher, Flores, Delgado, and Guerra should put
any personal issues aside.
  And with the bill to taxpayers climbing by the minute, and no immediate relief expected, the
parties involved should all take affirmative steps to resolve this expensive saga and bring this
case to an end – a relief that Hidalgo County’s crowded dockets need, and one that
overburdened taxpayers deserve.



14. Judge Bonnie Reed – Texas 1999
SOURCE: www.now.org/nnt/05-95/judge.html
Judge Handcuffed and Jailed for Trying Wife-Beater


by Guest Writers Rita Mayer and Ilene Whitworth

                     Judge Bonnie Reed was led in handcuffs from her court room.

                     In a true taste of Texas politics, Judge Bonnie Reed was jailed
                     for contempt of court April 11. This extraordinary action was the
                     first time in more than 20 years that a sitting judge has been


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jailed for criminal contempt in the United States, and the first time ever in Texas.
But the case has less to do with legal technicalities than with anti-feminist
antagonists seeking revenge on a local leader in stopping domestic violence.
 For nearly 10 years, Judge Reed has been an ardent defender of women's
rights. After her first appointment as a county court judge in June 1985, she
primarily handled criminal cases such as misdemeanors and DWIs. Reed also
handled some family violence cases, where she quickly saw an unmet need.
 Reed worked long hours to convince the district attorney of Bexar County that all
family violence cases should be heard in just two courts. Prior to her efforts, the
cases were dispersed among eight courts, with only one prosecutor running
among the courts to try the cases.
 The inefficiency of the system often forced judges to throw out the family
violence charges on the grounds that the prosecutor was unprepared to go to
trial. Prosecutors were also routinely dropping such cases when the male
perpetrator would say that his partner "didn't want to press charges."
 And because there was no follow up, many violent family situations would return
to court for more serious offenses. With the cases that were heard fielded out
among the different courts, there was no consistency in dealing with perpetrators.
Offenders' lawyers tried to get their clients' cases heard in the more lenient
judges' courts.
 Because of her persistence, the county commissioners, court and the district
attorney's office agreed to forward the family violence cases to her court and a
second court, headed by a male judge. During this period, she also began
pressuring the district attorney's office to appoint a second prosecutor for family
violence. Eventually one prosecutor was assigned to each family violence court.
 Judge Reed began educating herself on the cycle of family violence and current
legal remedies, leading her to institute changes in the methods of dealing with
offenders.
 The most important aspect of Judge Reed's court is a "no drop" policy. Even if
the victims are unwilling to prosecute or the district attorney's office recommends
dismissal, Judge Reed insists on hearing the case. All accused offenders
arrested for domestic violence face their day in court.
 Reed's intervention methods begin with family counseling, especially for
batterers and sometimes for the victims. She educates the families about the
cycle of violence and prevention.
 If alcohol or drug use are contributing factors to the violence, Reed requires
offenders to complete a treatment program and attend Alcoholics Anonymous
meetings daily for a prescribed period of time. Occasionally, she orders offenders
institutionalized for 60 or 90 days of treatment of substance abuse problems.
 Reed also forces offenders who are unwed fathers to become legally
responsible for their children. In doing so, Reed assures women the legal right to
financial support should the offenders attempt to skirt their responsibilities.
 Finally, Reed orders jail time for the most violent offenders. Under Texas law,
family violence assaults are class A misdemeanors with a maximum punishment
of one year in the county jail. Because of Judge Reed's efforts, convicted




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offenders remain in jail for the duration of their sentence, with no time off for good
behavior.
 Even with this degree of judicial involvement, Judge Reed has achieved her goal
of handling all domestic violence cases within 100 days, at a time when court
cases frequently take a year or more to be heard.
 The main impetus behind such speed is the safety of the women involved. In the
last few years, there have been two murders and a suicide among abused
women in San Antonio while their family violence cases were waiting to be heard.
 One of Reed's proudest accomplishments was the honor of being selected to
educate other judges about her methods of dealing with family violence. Texas
now mandates that judges receive six hours of training in family violence issues.
 As a result of her efforts to protect women, Reed made enemies among some
politicians and defense attorneys -- the most tenacious of whom was John
Longoria.
 Longoria began as a defense attorney and later became a county judge. In 1992
he was elected to the state legislature. Throughout his career, Longoria
continued to work as a defense attorney, representing numerous anti- abortion
activists arrested for protesting outside abortion clinics. Aware that Judge Reed
is an abortion rights supporter, Longoria would demand that Reed recuse herself
from hearing the anti-abortion cases assigned to her because of her stance. She
refused.
 The clash that led to Judge Reed being taken from court in handcuffs came over
a Texas statute allowing an attorney who is also a legislator to obtain a
mandatory legislative continuance of any court case heard while the legislature is
in session. The continuance delays the case until the session is over, which
could put domestic violence victims at increased risk.
 Such a case was scheduled to be heard by Judge Reed, during the legislative
session, and the defendant was represented by Rep. Longoria. Longoria filed for
a continuance, but Reed denied it. Instead, she scheduled the trial for a Friday,
when the legislature was not in session. Longoria is often in court on Fridays to
represent his clients.
 After the trial began, Longoria filed a writ of mandamus with the Fourth Court of
Appeals. He obtained an order directing Judge Reed to stop the trial. By the time
she received the order, the trial was going into closing arguments. Believing the
point to be moot and having no legal precedent to stop it at that stage, Reed
completed the trial. The offender was found guilty of assaulting his wife. Longoria
then filed a motion for criminal contempt of court in the Fourth Court of Appeals.
The appeals court decided April 11 that Judge Reed was indeed guilty of criminal
contempt. She was sentenced to a $500 fine, court costs of over $1,000, and 30
days in jail. At the hearing's conclusion, the court ordered that Judge Reed be
immediately handcuffed and taken to the Bexar County Jail. Raise your hand if
you believe a male judge in the same situation would have been led away in
handcuffs.
 Reed's supporters quickly organized a demonstration outside the jail that drew
extensive media coverage. Chants of "we love you, Judge Reed" greeted her
when she was finally released on a personal recognizance bond later that night.



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Judge Reed is appealing the sentence, but faces possible removal from the
bench.
 Offenders attorneys are again trying to disperse the family violence cases
among the eight courts. Women's rights activists think this would lead to a return
to earlier days of light or no sentences for violent offenders and "forum-
shopping" by defense attorneys for lenient judges.


15. FORD MOTOR COMPANY 05-0374 Texas
   Supreme Court
SOURCE: http://www.supreme.courts.state.tx.us/historical/2005/may/050374.htm

          IN THE SUPREME COURT OF TEXAS


                                 ════════════

                                   NO. 05-0374

                                 ════════════




              IN RE FORD MOTOR COMPANY, RELATOR




     ════════════════════════════════════════════════════

                   ON PETITION FOR WRIT OF MANDAMUS

     ════════════════════════════════════════════════════




                                  PER CURIAM




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       On May 28, 2004, Robin Fuentes, her husband, and her two children were

involved in a car accident. Fuentes suffered serious injuries that rendered her a

quadriplegic. Less than three months later, the Fuentes family sued Ford Motor

Company, Goodyear Tire & Rubber Company, and the tire repair shop that installed tires

on the pick-up truck for damages arising from an alleged tire failure that caused the truck

to roll over. The case was set for trial to commence on May 16, 2005, less than nine

months after it was filed. On April 1, 2005, Ford filed a motion for legislative

continuance under Section 30.003 of the Texas Civil Practice and Remedies Code. On

April 21, 2005, the trial court held a hearing on the motion. Four days later, the trial

court denied the motion and set the case for trial on May 31, 2005. The court of appeals

denied Ford‘s petition for writ of mandamus, and on May 13, 2005, Ford filed its petition

with this Court.


       To be entitled to mandamus relief, Ford must show that the trial court committed

a clear abuse of discretion and that it has no adequate remedy by appeal. In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 135B36 (Tex. 2004); Walker v. Packer, 827 S.W.2d

833, 839 (Tex. 1992). A trial court abuses its discretion if ―‗it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law‘‖ or if it

clearly fails to correctly analyze or apply the law. Walker, 827 S.W.2d at 839, 840

(quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).

Although this Court has acknowledged that the second requirement for mandamus relief

―has no comprehensive definition,‖ we have explained that determining whether a party

has an adequate remedy by appeal requires a ―careful balance of jurisprudential



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considerations‖ that ―implicate both public and private interests.‖ In re Prudential, 148

S.W.3d at 136. ―When the benefits [of mandamus review] outweigh the detriments,

appellate courts must consider whether the appellate remedy is adequate.‖ Id.


       Section 30.003 of the Texas Civil Practice and Remedies Code provides that a

court shall grant a motion for continuance if an attorney representing a party is a member

of the legislature and will be attending a legislative session. Specifically, the statute

provides as follows:




               (a) This section applies to any criminal or civil suit, including
       matters of probate, and to any matters ancillary to the suit that require
       action by or the attendance of an attorney, including appeals but excluding
       temporary restraining orders.



               (b) Except as provided by Subsections (c) and (c-1), at any time
       within 30 days of a date when the legislature is to be in session, at any
       time during a legislative session, or when the legislature sits as a
       constitutional convention, the court on application shall continue a case in
       which a party applying for the continuance or the attorney for that party is
       a member or member-elect of the legislature and will be or is attending a
       legislative session. The court shall continue the case until 30 days after
       the date on which the legislature adjourns.



                (c) Except as provided by Subsection (c-1), if the attorney for a
       party to the case is a member or member-elect of the legislature who was
       employed on or after the 30th day before the date on which the suit is set
       for trial, the continuance is discretionary with the court.
               (c-1) If the attorney for a party to any criminal case is a member or
       member-elect of the legislature who was employed on or after the 15th
       day before the date on which the suit is set for trial, the continuance is
       discretionary with the court.




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               (d) The party seeking the continuance must file with the court an
       affidavit stating the grounds for the continuance. The affidavit is proof of
       the necessity for a continuance. The affidavit need not be corroborated.



               (e) If the member of the legislature is an attorney for a party, the
       affidavit must contain a declaration that it is the attorney's intention to
       participate actively in the preparation or presentation of the case and that
       the attorney has not taken the case for the purpose of obtaining a
       continuance under this section.



              (f) The continuance provided by Subsection (b) is one of right and
       may not be charged against the party receiving it on any subsequent
       application for continuance.



TEX. CIV. PRAC. & REM. CODE § 30.003(a)B(f). The statute provides that when a

lawyer-legislator is retained more than thirty days before the date a civil case is set for

trial, a trial court lacks discretion to deny a properly requested motion for legislative

continuance. Id. § 30.003(b), (c); see also Waites v. Sondock, 561 S.W.2d 772, 776 (Tex.

1977); Collier v. Poe, 732 S.W.2d 332, 343, 346 (Tex. Crim. App. 1987) (analyzing

previous version of statute).


       In Waites v. Sondock, this Court recognized a constitutional limitation on the

mandatory nature of the legislative continuance. 561 S.W.2d at 776. In Waites, a mother

initiated a contempt proceeding to compel her former husband to comply with a child

support order. Id. at 772. The husband‘s lawyer filed a motion for legislative

continuance with supporting affidavit, which the mother opposed. She argued that the

child support payments were ―critical to her ability to feed and support her children.‖ Id.

at 774. This Court held that requiring mandatory continuances when the party opposing


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the continuance ―faces irreparable harm from the delay in enforcing existing rights‖

violates the due process clause of the Fourteenth Amendment of the United States

Constitution and Article I, Sections 13 (open courts) and 19 (due process) of the Texas

Constitution. Id. at 773. However, the Court emphasized the limited nature of its

holding: ―a legislative continuance is mandatory except in those cases in which the party

opposing the continuance alleges that a substantial existing right will be defeated or

abridged by delay.‖ Id. at 776. When a party opposes a legislative continuance in such

circumstances, the trial court must conduct a hearing on the allegations and deny the

motion if the allegations are shown to be meritorious. Id. Subsequently, the Court of

Criminal Appeals and several lower courts of appeals have addressed the scope of the

Waites exception to mandatory legislative continuances, but we have not. See, e.g.,

Collier, 732 S.W.2d at 344 (holding that the Waites exception cannot be invoked by the

prosecutor in a criminal proceeding); In re Starr Produce Co., 988 S.W.2d 808, 811B12

(Tex. App.CSan Antonio 1999, orig. proceeding) (holding that loss of attorney‘s services

because of his inability to continue representation through the new trial date did not

create the type of irreparable harm described in Waites); Amoco Prod. Co. v. Salyer, 814

S.W.2d 211, 213 (Tex. App.CCorpus Christi 1991, orig. proceeding) (holding that the

harm caused by lost business opportunities did not ―rise to the level of a due process

violation‖); Condovest Corp. v. John Street Builders, Inc., 662 S.W.2d 138, 141 (Tex.

App.CAustin 1983, no writ) (concluding that inability to convey title to real property was

―clearly a substantial right‖ protected by the Waites exception).


       Ford‘s motion for a legislative continuance meets the requirements of the statute.

Representative Jim Solis‘s affidavit states that he is a member of the Texas House of



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Representatives, that the session extends from January 11, 2005 through May 31, 2005,

and that he will be attending the legislative session. See TEX. CIV. PRAC. & REM.

CODE § 30.003(d), (e). Solis also stated that he represents Ford and intends to

participate actively in the preparation and presentation of the case. See id. Finally, the

affidavit also declares that Solis did not take this case for the purpose of obtaining a

continuance under Section 30.003 of the Texas Civil Practice & Remedies Code. See id.

Because Ford‘s motion was filed more than thirty days before the scheduled trial date and

met the statutory requirements, the trial court was without discretion to deny the motion

unless Fuentes established her entitlement to an exception. See id. ' 30.003(b), (c), (f);

Waites, 561 S.W.2d at 776.


       Fuentes opposed the motion, essentially contending that because her participation

in a comprehensive rehabilitation services program with the Texas Department of

Assistive and Rehabilitation Services will conclude soon, any continuance will prevent

access to needed medical care. Fuentes argues that she has an ―existing right to

rehabilitation and medical care‖ that constitutes a ―substantial existing right‖ under our

decision in Waites. Additionally, Fuentes argues that granting the continuance in this

case violates her rights to access the court system. To support these contentions, Fuentes

attached the affidavits of her husband, Robert Fuentes, and Dr. Joe Gonzales.


       Robert Fuentes‘s affidavit explains that his wife has been a quadriplegic since the

accident and requires constant medical attention and therapy. He also states that he and

his wife recently received a letter from the Texas Department of Assistive and

Rehabilitative Services explaining that the temporary funding provided for her treatment




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will soon expire. The letter is attached to the affidavit. Finally, Robert Fuentes explains

that he is not qualified to provide the treatment that his wife requires. He does not

indicate when the current funding ends, whether other funding arrangements have been

made, or whether other funding sources are available.


       In his affidavit, Dr. Gonzales states that he is familiar with the condition of

Fuentes and the current funding source of her medical treatment. He explains that

―prompt, consistent, and continued rehabilitation is essential to maximize recovery for

persons with spinal injuries.‖ He further opines that ―if [Fuentes] discontinues her

treatment, which will happen in the near future unless she obtains additional funding, she

will be permanently and irrevocably harmed.‖ He does not indicate specifically when the

current funding ends or whether additional funding has been obtained.


       In this case, the trial court made nine specific findings in its order denying Ford‘s

motion for legislative continuance, apparently based on the exception this Court

described in Waites:




I.     Ford Motor Company retained Representative Jim Solis on or about April
1, 2005, approximately 45 days before the May 16, 2005 trial, and he has
averred that he intends to play a substantial role in the case and that he is not
appearing for the purpose of delay.




II.     Ford Motor Company moved for a continuance on the same date Rep.
Solis appeared in this case.




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III.    Robin Fuentes sustained disabling back injuries in the incident made the
basis of this suit, which injuries require access to round the clock medical care
and rehabilitative therapy.




IV.         Robin Fuentes presently has a right and access to medical and
rehabilitative services to aid in the treatment for, and rehabilitation from, her
injuries.




1)      Robin Fuentes also has Due Process rights under the United States and
Texas constitutions, and she has a right to seek redress for her injuries pursuant
to Texas Constitution Art. I, Section 13.




2)         Robin Fuentes’ access to such medical treatment and rehabilitative
therapy will be jeopardized should this case be continued from its present trial
setting.




3)     Robin Fuentes will be irreparably harmed if her access to medical care and
rehabilitative therapy is discontinued.




4)     Robin Fuentes’ constitutional right to redress and to Due Process will be
violated if the Court grant [sic] a continuance based on Rep. Jim Solis’ legislative
service.




5)      The Court has considered the contents of the court’s file, including the
affidavit of     Robert Fuentes,    the     affidavit of   Dr.   Joe   Gonzales,   and



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correspondence from the Texas Department of Assistive and Rehabilitative
Services.



       Fuentes claims that the Waites exception applies because she has a right to

―access to medical and rehabilitative services to aid in the treatment for, and

rehabilitation from, her injuries.‖ But she does not have a right to have Ford pay for

those services unless or until mandate to that effect issues after trial, judgment, and

possible appeals. Although we sympathize with the disabling injuries from which

Fuentes suffers, relief from a mandatory legislative continuance requires a higher

showing than the record in this case makes. She has no substantial existing right to

access to medical care that is enforceable against Ford. Her claims against Ford arise

from alleged defects of a pick-up truck, not for improperly denying her access to medical

care. If she succeeds in obtaining a favorable final judgment against Ford, then she will

have an existing right that could be subject to the Waites exception. Until then, she has a

right to access the court system to pursue her claims against Ford. See Sax v. Votteler,

648 S.W.2d 661, 665B66 (Tex. 1983). Continuing this case, which has been pending

only a few months, in accordance with the Legislature‘s ―determination that the interests

of the people of the State will be best served by the attendance of legislator-attorneys at

legislative sessions‖ does not violate the due process clause of the Fourteenth

Amendment of the United States Constitution or Article I, Sections 13 (open courts) and

19 (due process) of the Texas Constitution. Waites v. Sondock, 561 S.W.2d 772, 774

(Tex. 1977). Because the constitutional exception in Waites does not apply, the trial

court had no discretion to deny the motion for continuance.




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        We recognize that some tension exists between Article II, Section 1 of the Texas

Constitution, which divides the powers of the government into three distinct branches,

and a legislative enactment that makes mandatory what is typically left to judicial

discretion. Gov’t Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 564B67 (Tex.

1963). But the tension is not all on one side. Given the relative infrequency of

legislative sessions in Texas and the key roles played by members who are attorneys, a

serious constitutional crisis could arise if a court in a remote part of the state could force

a legislator to trial the moment a legislative session ends, as the trial court planned to do

here. Enforcing legislative continuances is also consistent with the constitutional

protection afforded legislators to attend legislative sessions. Except in cases of treason,

felony, or breach of the peace, the Texas Constitution itself protects legislators from

arrest while traveling to or attending such sessions. TEX. CONST. art. III, § 14. As that

provision shows, the legislative privilege is not absolute, but trial courts construing the

Waites exception must require a higher showing of impairment of an opposing party‘s

constitutional rights than the trial court did here.


        As our sister court summarized, a mandatory legislative continuance ―usually

serves a dual purpose of encouraging good men and women to sacrifice their time in the

interest of good government and of protecting a party to a law suit whose attorney may be

serving in the Legislature.‖ Collier v. Poe, 732 S.W.2d 332, 334 (Tex. Crim. App.

1987). Without such a device, a lawyer-legislator could be forced to decide between

fulfilling the duty owed to a client and the duty owed to constituents to participate in a

legislative session. The consequences of that decisionC possibly nonparticipation in a

legislative sessionCcould not be remedied on appeal. To give full effect to the



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Legislature‘s policy decision regarding legislative continuances, we conclude that a party

has no adequate remedy by appeal when a trial court abuses its discretion by denying a

motion for legislative continuance. See In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 136B37 (Tex. 2004).


         Pursuant to Texas Rule of Appellate Procedure 52.8(c), we issue this opinion

without hearing oral argument and conditionally grant a writ of mandamus directing the

139th Judicial District Court of Hidalgo County, Texas, to grant the motion for legislative

continuance. That writ will issue only if the district court fails to act in accordance with

this opinion.




OPINION DELIVERED: May 27, 2005


          Although Waites interprets a previous version of the legislative continuance statute, the analysis
in Waites is equally applicable to the current statute. Act of May 28, 1973, 63rd Leg., R.S., ch. 428, ' 1,
1973 Tex. Gen. Laws 1130, 1130-31 (former TEX. REV. CIV. STAT. art. 2168a), repealed and recodified
by Act of May 17, 1985, 69th Leg., R.S., ch. 959, '' 1, 9, 10, 1985 Tex. Gen. Laws 3242, 3268-69, 3322
(―This Act is intended as a recodification only, and no substantive change in the law is intended by this
Act.‖), amended by Act of May 27, 1991, 72nd Leg., R.S., ch. 304, ' 3.13, 1991 Tex. Gen. Laws 1290, 1321
(adding the requirement that ―the attorney has not taken the case for the purpose of obtaining a
continuance‖), amended by Act of April 10, 2003, 78th Leg., R.S., ch. 9, ' 1, 2003 Tex. Gen. Laws 10, 10-
11 (extending the statute‘s application to members-elect, altering the time period for which a continuance is
mandatory, and distinguishing between criminal and civil proceedings) (current version at TEX. CIV.
PRAC. & REM. CODE ' 30.003(a) - (f)).

         The program, created by legislative mandate, provides temporary funding for medical services to
qualifying patients with traumatic spinal cord or brain injuries. TEX. HUM. RES. CODE ' 111.060; 40
TEX. ADMIN. CODE ' 107.1201. The total number of hours of certain types of therapy paid with program
funds may not exceed 120 hours, and Fuentes‘s treatment is nearing this limitation. 40 TEX. ADMIN.
CODE ' 107.1209 (2)(D).


16. IN RE Linda SMART 04-02-00905-CV– Texas
    2002


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SOURCE: http://bulk.resource.org/courts.gov/states/Tex.App.04/15782.html
                                No. 04-02-00905-CV
                                IN RE Linda SMART
                           Original Mandamus Proceeding (1)

Opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice

Catherine Stone, Justice

Karen Angelini, Justice

Delivered and Filed: January 22, 2003

PETITION FOR WRIT OF MANDAMUS DENIED

On December 12, 2002, relator, Linda Smart, filed a petition for writ of
mandamus complaining of the trial court's setting aside an order prohibiting
additional counsel and for granting a legislative continuance. Smart also filed a
motion for temporary relief asking this Court to prevent respondent from taking
any action that would hinder the matter going to trial on December 16, 2002. In
two issues, Smart contends that respondent abused his discretion for purposes
of mandamus by setting aside the order prohibiting the addition of new counsel
shortly before trial and granting a legislative continuance. Because Smart
essentially complains of respondent's decision to grant a continuance on this
matter, we conclude that she is not entitled to the relief sought. See Tex. R. App.
P. 52.8 (a).

                                    Background

Smart opted out of a class action federal lawsuit involving the diet drug Phen-Fen
to sue American Home Products Corporation and its division Wyeth-Ayerst
Laboratories ("Wyeth") in Texas. On November 12, 2002, a pre-trial hearing was



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held where Judge Terry Canales, presiding judge of the 79th Judicial District
Court, rendered an order prohibiting the parties from adding counsel given a
close trial date. Respondent determined that a jury should be empaneled for
December 13, 2002. At the hearing, plaintiff's counsel raised his concern that
defense counsel would possibly be adding new counsel who may be a legislator
and seek a legislative continuance. When defense counsel was confronted with
this possibility the following exchange occurred:

THE COURT: Well, I wanted him [defense counsel] to be here, because he is to -
he is generally the lead counsel in the case. I don't know who is in charge, but
the Court is going to, from the bench, render an order today that the joinder of
additional counsel is no longer permissible.

MR. CANALES [defense counsel]: What brought that up?

MR. O'BRIEN [plaintiff's counsel]: Just checking.

THE COURT: He doesn't trust you. He thinks you are going to go talk to Vilma or
somebody like that and get a legislative continuance.

MR. CANALES: Why would I want to do something like that?

THE COURT: That's what I said. I don't believe it.

MR. CANALES: I've done it before.

(LAUGHTER)

MR. CANALES: I mean, I'm not denying it. I've done it before - I used to have
Bob Dale's - Bob Dale's motions inside his pocket.

THE COURT: We're going to - the Court is going to order that we're to use
counsel as of today. We're not going to be changing lawyers.




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MR. O'BRIEN: Fair enough.

THE COURT: Okay. Fair enough.

MR. CANALES: We're not changing lawyers.

THE COURT: Or adding.

MR. O'BRIEN: Thank you, Your Honor.

MR. CANALES: We had - we had no plans Judge, of adding a legislator to this
case.

THE COURT: You know how people can be naturally suspicious.

MR. CANALES: There's no reason. There's no basis -- well, there is basis in fact.

(LAUGHTER)

MR. CANALES: But if you would have asked me, I would have just told him on
the spot, "[N]o, we don't plan to do it at this time, in this case today."

THE COURT: I understand, but what if your employer had insisted.

MR. CANALES: We'd do it.

THE COURT: Okay. I wouldn't have anything to do with what you plan on doing.
They tell you, "Hey -

MR. CANALES: I'd do it. There's nothing - as long as it's not unlawful, Judge.
The state allows it at the present time, Judge, I understand the court's ruling.

THE COURT: I'm not saying - I'm not saying that the legislative continuance is
inappropriate I'm just limiting counsel.




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MR. CANALES: Didn't you file with some when you were a legislator?

THE COURT: Probably not.

MR. CANALES: You probably did.

THE COURT: I didn't have any cases

MR. CANALES: Yes, you did. Yes, you did.

(LAUGHTER)

MR. CANALES: You did it yourself.

THE COURT: Maybe you should go talk to Gabi.

(LAUGHTER)

MR O'BRIEN: The Court's ready to make a ruling

MR. CANALES: I think you've - I'll go talk to Gabi.

THE COURT: I don't know if that's -

MR. CANALES: Done deal. It's over. Don't even need to discuss it anymore. I'll
go talk to her.

MR O'BRIEN: Thank you, Your Honor.

THE COURT: That's not even humorous.

(LAUGHTER)

The "Gabi" referred to in the record is Gabriella Canales an attorney and
respondent's daughter. The record reflects that Ms. Canales was elected to the




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Texas State Legislature in November 2002 and was sworn in on January 14,
2003. She was retained by Wyeth shortly after the hearing.

As a result of Ms. Canales's retention, a hearing was held on November 25,
2002. At that time respondent acknowledged that he had ordered that the parties
were prohibited from adding counsel. Initially, respondent was under the
impression that his daughter would personally be working on the case. However,
Wyeth informed the court that Ms. Canales would be entering an appearance in
the case because of her "significant important contribution . . . to the case on
behalf of [Wyeth]." In particular, Wyeth noted Ms. Canales's "standing in the
community." Respondent then noted he needed to recuse himself from the case.
Wyeth filed a motion to recuse on November 25, 2002. That motion was heard by
visiting Judge Mike Westergren and denied on the basis that an issue remained
on whether respondent's prior order prohibiting the addition of new counsel was
proper.

On November 27, 2002, Wyeth filed a motion to set aside the order prohibiting
additional counsel and for a legislative continuance. Smart responded. On
December 9, 2002, a telephonic hearing was conducted between all parties with
Judge Westergren presiding. Ms. Canales was present at that hearing. At the
hearing, she admitted she was a member-elect of the Texas Legislature and that
she would be sworn in on January 14, 2003. Finding that Ms. Canales's status
was dependent upon membership status as opposed to actually taking office,
Judge Westergren granted the motion for a legislative continuance filed by Wyeth
and set aside respondent's prior order. This mandamus ensued.

                                Standard of Review

A mandamus will issue to correct a clear abuse of discretion. Liberty Nat'l Fire
Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996); Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992). In reviewing a trial court's decision regarding the facts, the
reviewing court cannot substitute its judgment for that of the trial court. Walker,


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827 S.W.2d at 839. A relator must establish that the trial court could reasonably
have reached only one decision. Id. at 840. Even if the appellate court would
have decided the issue differently, it cannot disturb the trial court's decision
unless it was arbitrary and unreasonable. Id. A relator must also show that she
does not have any remedy at law that is adequate. In re Union Pac. Res. Co.,
969 S.W.2d 427, 428-29 (Tex. 1998).

                                      Analysis

Smart asserts that the trial court abused its discretion because Wyeth (or
Wyeth's counsel) was equitably estopped from changing its position that it would
not change or add new counsel as represented at the November 12, 2002
hearing. We are unpersuaded by this argument given the fact that a trial court
has discretion to set aside prior orders on the basis of changed circumstances. In
setting aside an order, a trial court may very well raise the ire of one party who
may be inconvenienced or even placed at a disadvantage. (2) However, such
grounds do not establish that the trial court abused its discretion for purposes of
mandamus. Accordingly, we overrule Smart's first issue.

In her second issue, Smart contends that respondent abused his discretion for
purposes of mandamus by granting Wyeth a legislative continuance because Ms.
Canales is technically not a member at the time of the hearing, but rather a
member-elect of the Texas Legislature. The record reveals Wyeth's questionable
misuse of the legislative continuance statute. We agree with Smart that
respondent abused his discretion in granting a legislative continuance under the
circumstances presented in this case. However, we deny the petition because
Smart has an adequate remedy at law.

A writ of mandamus will issue to compel the performance of a ministerial act or
duty. Walker, 827 S.W.2d at 839. An act is ministerial where the law clearly
spells out a duty to be performed by a public official with such certainty that
nothing is left to the official's discretion. Anderson v. City of Seven Points, 806


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S.W.2d 791, 793 (Tex. 1991). A trial court is under the ministerial duty to grant a
legislative continuance when the statutory criteria are met. See In re Starr
Produce Co., 988 S.W.2d 808, 812 (Tex. App.--San Antonio 1999, orig.
proceeding); Ojeda v. State, 916 S.W.2d 609, 610 (Tex. App.--San Antonio 1996,
pet. ref'd).

Section 30.003 of the Texas Civil Practice and Remedies Code provides the
following:

(b) Except as provided by subsection(c), at any time within 30 days of a date
when the legislature is to be in session, any time during a legislative session, or
when the legislature sits as a constitutional convention, the court on application
shall continue a case in which a party applying for the continuance or the
attorney for that party is a member of the legislature and will be or is attending a
legislative session. The court shall continue the case until 30 days after the date
on which the legislature adjourns.

Tex. Civ. Prac. & Rem. Code Ann. � 30.003 (Vernon 1997). Subsection (c)
provides a due process exception from the mandatory continuance where the
non-movant can show irreparable harm or injury to a substantial right. See In re
Starr Produce Co., 988 S.W.2d at 808. The type of injury necessary for this
exception to apply is injury over and above common inconvenience or delay. Id.
In other words, an injury that cannot be remedied and can only be prevented by
immediate access to court. Id. The due process exception is not applicable here
as Smart has failed to assert it and because the circumstances as reflected in the
record fail to support anything more than common inconvenience or delay.

In support of her argument that respondent abused his discretion for purposes of
mandamus, Smart argues that respondent erred in granting the motion for
legislative continuance outside the mandatory time frame. We agree. The
Legislatures's intent under section 30.003 was to create a window of time that
begins thirty days before session and ends thirty days after session in which a


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legislator may seek a continuance. See First Interstate Bank of Texas, N.A. v.
Burns, 951 S.W.2d 237, 241 (Tex. App.--Austin 1997, no pet.). During that time
frame, when an application for legislative continuance is made, the trial court
must grant it. See Tex. Civ. Prac. & Rem. Code Ann. � 30.003 (b) (Vernon
1997). In the instant matter, the first legislative session would begin on January
14, 2002. The thirtieth day from when the Legislature would be in session fell on
December 16, 2002. The record reflects respondent granted the legislative
continuance on December 9, 2002. Accordingly, respondent granted the motion
outside the thirty-day window of section 30.003 of the Texas Civil Practice and
Remedies Code. Respondent was not under the ministerial duty to grant the
legislative continuance.

In reviewing the trial court's determination of the law, we are not as deferential to
its decisions regarding facts. See Walker, 827 S.W.2d at 840. A trial court has no
discretion to misinterpret the law or misapply the law. See id. Thus, a clear failure
to analyze the law or apply the law correctly constitutes an abuse of discretion.
See id. In the instant matter, respondent misapplied the law regarding a
legislative continuance. Accordingly, respondent abused his discretion.

While we may agree that respondent abused his discretion in granting the
legislative continuance, we cannot grant Smart's petition. Smart must show that
she does not have an adequate remedy at law. In re Union Pac. Res. Co., 969
S.W.2d at 428-29. An appellate remedy is not inadequate merely because it
involves more expense or delay than a writ of mandamus. In re Masonite Corp.,
997 S.W.2d 194, 197 (Tex. 1999). Smart fails to argue or show that she has no
adequate remedy at law. The instant matter can be compared to a party who has
been adversely affected by an ordinary continuance. Respondent's decision to
continue the proceedings, although erroneously based, amounts to no more than
mere delay. Smart can complain of the trial court's error on appeal. Accordingly,
we overrule Smart's second issue and deny the petition.




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                                          Conclusion

We agree with Smart that the record reflects Wyeth engaged in, at the very least,
questionable conduct by using the tactical advantage the legislative continuance
statute provides. And, while it may have been in jest, we question the
appropriateness of the exchange between respondent and defense counsel
regarding the retaining of additional defense counsel who is a legislator-elect at
the November 12, 2002 hearing. However, because Smart has an adequate
remedy on appeal, we deny the petition for writ of mandamus.

Alma L. López, Chief Justice

PUBLISH

1. This proceeding arises out of Cause No. 02-04-40259-CV, styled Linda Smart
v. American Home Products Corporation, et al., pending in the 79th Judicial
District Court, Jim Wells County, Texas, the Honorable Terry Canales presiding.
The Honorable Mike Westergren signed the order made the basis of this petition.

2. Smart argues that she was harmed by respondent's actions because her
counsel has spent "valuable time and resources interviewing witnesses and
experts, taking depositions, preparing pre-trial motions conducting research on
possible legal issues and preparing direct and cross examination of potential
witnesses." We recognize counsel's hard work in preparing for trial. However, we
would note that such work product can still be used for a trial at a later date.


17. Broesche v. Jackson 14-04-00548 CV
SOURCE http://www.hbafam.org/cases0407.html
Gray's Interesting Cases - April 2007
   1. Broesche v. Jackson, et al, No. 14-04-00548-CV, not yet published (CA Houston -
      14th). H & W divorced in '93 and continued their bitterness thereafter through protracted
      and vexatious litigation. The current spat involved the interpretation of the parties' divorce
      decree which was, after several re-sets, finally set for trial on 1/6/03 with a Dec. 27th
      deadline to exchange jury charges, motions in limine, etc. Unknown to H's attorneys, W's



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       attorneys hired Legislator Joe Nixon on Dec. 23rd for the purpose of obtaining a
       legislative continuance. Although it had been W's attorneys' practice to fax notices to H's
       attorneys and W's attorneys had conversations with H's attorneys between Dec. 23rd and
       Dec. 27th, notice of Nixon's hiring was snail mailed to H's attorneys (and naturally was
       never mentioned in the Xmas conversations). The end result was that H's attys had to
       work Xmas eve and Xmas day while W's attys enjoyed the holidays with their families
       secure in the knowledge that their pet legislator/atty would obtain a legislative
       continuance of the Jan. 6th trial.

       H's attorneys learned of Nixon's hiring on Dec. 26th. The trial was once again continued.
       Later H filed for sanctions against W for various abuses including the Xmas debacle. The
       T/C sanctioned W $162,000 with special emphasis on the Xmas events. W appeals
       claiming she can't be sanctioned for "engaging in conduct intended to disrupt the
       proceeding by abusing the rules of fair play and causing delay" as there's no rule
       preventing her from hiring a legislator just prior to trial and requesting a legislative
       continuance (Nixon filed no pleadings and made only one court appearance -- probably
       on the motion for legislative continuance). Additionally W violated no rule by snail mailing
       notice of Nixon's appearance rather that faxing same.

       CA affirmed. Courts have the inherent power to sanction for abuse of the judicial
       process even if the conduct at issue does not violate a specific rule or statute.

       Comment - Good law and Kuddos to the T/C and CA for assessing punishment for the
       disgusting use of the legislative continuance. Too bad legislators can't be sanctioned for
       the abuse of their elective rights in these circumstances, i.e. the whorish sale of
       legislative continuances.




18. South Texas Watchdog Authority
SOURCE: http://stxwa.blogspot.com/2007/05/those-who-look-to-lone-star-state-for.html
South Texas Watchdog Authority
Tuesday, May 01, 2007
THOSE WHO LOOK TO THE LONE STAR STATE for political intrigue have had a
good year.


By Sam Goodstein


THOSE WHO LOOK TO THE LONE STAR STATE for political intrigue have had
a good year. In one of his final acts as House majority leader, Dick Armey tried to
insert a media ownership rule into an arms bill that seemed to single out The
Dallas Morning News for punishment, reportedly because of the paper's decision
not to endorse his son's failed Congressional bid in Denton County. Then, last



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spring, Democrats in the Texas state legislature fled to neighboring Oklahoma to
avoid giving Republicans the quorum they needed to pass a partisan redistricting
plan. Both moves are fine examples of the bipartisan wile of Texas politicians.
But when it comes to unsavory politicking, some of the most adroit manipulation
happens on the local level. Consider the political favors done for Wyeth, a $60
billion pharmaceutical company based in Madison, N.J.


In the mid-1990s, American Home Products (as Wyeth was then called)
marketed a weight-loss cocktail known as fen-phen. After research demonstrated
in 1997 that fen-phen increased the risk of failing heart valves, causing blood that
was supposed to be pumped into the body to dribble back into the heart, the
manufacturer quickly pulled it off the shelves. But the damage had already been
done. The ensuing federal class-action lawsuit brought by fen-phen users
resulted in a $3.75 billion settlement with the company. A number of plaintiffs,
dissatisfied with the settlement, opted out and pursued separate litigation against
Wyeth in Texas state court.


Wyeth was represented by an outstanding legal team, including the Washington,
D.C., powerhouse firm Arnold & Porter. Faced with the prospect of another
massive payout, however, Wyeth took no chances. It sought additional counsel in
the form of Gabi Canales, a solo practitioner from Alice, Tex., a sleepy town
about 120 miles south of San Antonio. Canales, a 1998 graduate of nearby St.
Mary's University Law School, had a diverse practice, doing plaintiffs work,
estates, wills, and the like. But she had never worked on a major product liability
case or one involving complex scientific evidence. Like many fresh-faced young
attorneys, she was eager to tackle a big case. "I haven't been practicing for very
many years," she explained, "so I wanted whatever experience I could get to
diversify my practice."


NOT EVERYONE APPROVED OF HER DECISION to join the Wyeth team.



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Canales, as it happened, held down another job—representing the residents of
Alice as a Democrat in the state legislature. About to depart to Austin for a four-
month legislative session, Canales's first legal maneuver on behalf of Wyeth was
to ask the judge on the case—her father, it turned out—for a six-month
continuance. When Judge Terry Canales recused himself, citing an obvious (and,
one might have imagined, foreseeable) conflict of interest, the matter was left to
be decided by Judge Mike Westergren. Except that in reality, it wasn't
Westergren's call to make: Texas has a special provision that grants automatic
continuances to any lawyer who is also a state legislator. According to the state's
legislative continuance rule, which dates back to 1929, state courts must delay
proceedings until 30 days after the end of the legislative session—in this case
five months from the date of Gabi Canales's request.


The legislative continuance was devised as a way to satisfy the competing
demands on a part-time legislator's attention. The Texas legislature meets for a
maximum of 140 days every other year, and its members are paid an annual
salary of $7,200. To make a living, most legislators must have a career outside
politics that also places demands on their time and energy. How could a Texas
lawyer hold clients if she couldn't assure them that she could meet her
responsibilities while away serving in the legislature?


Nine other states, including California, New York, Michigan, and Massachusetts,
operate full-time legislatures along the lines of Congress, but most employ part-
time "citizen legislatures," like that of Texas. In the South, where there isn't a
single full-time legislature, the part-time legislature is often invoked as a symbol
of limited, restrained government. "With a full-time legislature you don't have the
knowledge of industry and business that you have with a citizen legislature,"
argued Richard Saslaw, a Virginia state senator. "Part-time legislatures have
more knowledgeable members, so they don't have to rely on staff or lobbyists."




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Others disagree. In the era of the "new federalism" and devolution of power to
the states, a part-time legislature, they say, cannot meet the growing demands of
21st-century governance. "With the growing size, importance, and complexity of
state governments, full-time legislators are becoming imperative," said Steve
Tobocman, a state representative in Michigan's full-time legislature.


ARMED WITH TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION
30.003, Canales walked into court in December 2002 and postponed one of the
fen-phen litigations for over five months, a feat she duplicated in two other fen-
phen cases. At a pretrial hearing, the attorneys for Wyeth explained to the court
that Canales would make a "significant, important contribution" to the case,
noting her "standing in the community"—undoubtedly a good thing, but rarely a
prerequisite for defending a product liability case. "You have a case that is
barreling up to trial, where the lawyer-legislator is added to the case, where they
haven't participated in discovery," Bruce Flemming, a lawyer for the plaintiffs told
Texas Lawyer. "I think it is just a sin."


The plaintiffs appealed the continuance, and the Texas Court of Appeals derided
Wyeth's maneuvering, citing the company's "questionable conduct" in using
legislative continuances for "tactical advantage." Ultimately, however, the
plantiffs' appeal failed; since the statute didn't allow judicial discretion, the
appellate court's hands were tied. The delay forced the plaintiffs, many of whom
have significant medical bills thanks to fen-phen's side effects, to wait months for
their day in court.


"That's the system in Texas: One day you're a country lawyer with your shingle
out, then you get elected to the legislature and the next day you are a high-priced
product liability attorney," said Craig McDonald, the director of Texans for Public
Justice. McDonald's group is an Austin-based nonprofit that advocates political
reform, consumer protection, and corporate accountability. "This is blatant stuff,"



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he said. "Canales had no experience at all relevant to this case. The relevance
was that she was a newly elected legislator."


But Canales was not the only legislator to procure legislative continuances for
Wyeth. In the spirit of bipartisanship, the company also hired Representative
Ruben Hope, a Republican from Conroe, to postpone two other fen-phen trials.
And the company wasn't alone in using this tactic. Over the last few years, major
product liability cases against breast-implant manufacturers, asbestos
companies, and Firestone Tires have been put on hold in Texas. While it is
difficult to quantify the effect that delay has on a product liability case, it is often
used to put financial pressure on plaintiff's attorneys, who typically work for a
percentage of any damages awarded by the court. And though Canales may truly
believe in the virtue of Wyeth's cause, she was undoubtedly attracted by her
compensation. According to McDonald, "the rumor on the street is that
continuances go for somewhere between $20,000 and $30,000 each." Texas law
doesn't require disclosure, and how much Canales was paid is not a matter of
public record.


Texas is not the only state that allows legislative continuances, nor is it the only
state that gives judges no discretion to reject them. More than 20 states allow
such continuances. Iowa comes closest to Texas in effectively blocking judges'
discretion over them. But abuses of the rule are most egregious in Texas.


THIS SUMMER, HOWEVER, THERE WAS A SMALL STEP FORWARD in the
Lone Star State: the passage of an ethics reform bill. The new law requires,
among other things, legislators to report their requests for legislative
continuances, including the name of the party represented and the date on which
the legislator was retained, although not the amount paid for the service. The
information must be passed on to the Texas Ethics Commission within three
days, a provision that will make it easier to keep track of abuse. But because the



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bill requires the disclosure of information that is already known—the parties to a
case and their lawyers are matters of public record—few observers expect it to
have much political force.


Canales's own behavior might have some political fallout, but even that remains
uncertain. Her part in the Wyeth case secured her a place on Texas Monthly's
Top 10 Worst Legislators list, an impressive distinction for a first-term
representative. But Canales is politically well-connected: Her father remains a
district judge and her mother is county chairwoman for the Democratic Party.
Canales is convinced that her constituents don't care about, or pay much
attention to scandals like the continuance issue. "They are not interested," she
said. And she might be right: Her father, Terry, was himself ranked among the 10
Worst Legislators while serving as a representative in 1975—and has since been
elected four times to serve as judge for the district.


Sam Goodstein is an attorney working in Santa Monica, Calif. His writing has
appeared in The Los Angeles Times.


19. Analysis of Texas Law by Texans for Public
   Justice
SOURCE: http://www.tpj.org/reports/legecontinuances/introduction.html

I. Summary

      For 76 years lawyers who are members of the Texas Legislature have enjoyed a
       special perk called a ―legislative continuance.‖ Lawmakers who are attorneys in
       cases in state courts can delay proceedings in those cases whenever the legislature
       is in session.

      Facing complaints that some defendants abused this perk by hiring lawmakers to
       stall unwanted legal proceedings, the Texas Legislature passed a 2003 reform that
       has required lawmakers to publicly disclose their continuances since September
       2003.



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      The timing of this reform was fortuitous, coming amidst the seven special
       legislative sessions that Governor Rick Perry has convened in the past three years.
       By greatly expanding the normal legislative-continuance season, these special
       sessions helped to create more than two years worth of court black-out days
       during the two-and-a-half-year period starting in January 2003.

      Research on this report began before Governor Perry launched the latest
       continuance season by convening the April 17, 2006 special session. This report
       analyzes the 431 legislative continuances that 32 Texas lawmakers filed between
       September 2003 and September 2005.

      Rep. Roberto Alonzo filed an extraordinary 241 legislative continuances in this
       two-year period, accounting for 56 percent of all continuances filed. Rep. Phil
       King came next, filing 53 continuances (12 percent).

      Largely due to Rep. Alonzo‘s filings, lawmakers filed 63 percent of all
       continuances on behalf of criminal defendants. Family-law cases accounted for 8
       percent of all continuances; other civil cases accounted for 29 percent of the total.
       Even when limited to just civil cases, defendants accounted for 70 percent of all
       continuance filings.

      Thanks in part to special-session extensions of the legislative-continuance season,
       some lawmakers repeatedly filed one continuance after another in the same case.
       Rep. Alonzo claimed the record for serial continuances, filing five of them in one
       six-month period in the State of Texas v. Omar Hernandez. Rep. King filed 11
       continuances in five related cases that all involved a group of pawn-shop
       executives fighting over stock options.

      At least six lawmakers claimed continuances in cases that named themselves or
       apparent family members as defendants. Reps. Craig Eiland and Robert Puente
       claimed continuances in lawsuits that named them personally. Reps. Harold
       Dutton, Trey Martinez Fischer, Roberto Alonzo and Carlos Uresti claimed
       continuances in cases naming apparent family members as defendants (the latter
       two did not return calls about these cases).

II. Introduction

In 1929 the Texas Legislature created a privileged political perquisite that only is
bestowed upon lawmakers who practice law. Invoking this “legislative-
continuance” perk, a lawmaker who is an attorney of record in a Texas court
case can postpone case proceedings during a legislative session. In fact,
lawmaker-lawyers can stay these legal proceedings for more than six months—
from 30 days before a legislative session until 30 days after it ends.


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This perk’s defenders argue that, since lawyer-lawmakers cannot adequately
devote themselves to clients during legislative sessions, they should not be
penalized for serving in Texas’ part-time legislature. Critics counter that this
perk—once created—bred abuse. It is one thing if a lawmaker hired for his or her
legal expertise invokes a continuance. It is quite another when a client hires a
lawyer-lawmaker with no relevant experience to stall a case. Delay is a legal
tactic that has been deployed, for example, by wealthy defendants seeking to
outlive plaintiffs with scarce resources. Texas’ legislative-continuance law lacked
effective safeguards to stop lawmakers from brokering their continuance powers
to parties seeking court delays. Continuance abuses long have frustrated Texas
judges, at least one of whom complained that the high volume of continuance
trafficking effectively established a market price for them.1
For years each biennial, regular legislative session has spawned new media reports of
possible continuance abuses. The Texas Observer reported in 1999 that Sen. Chris Harris
(R-Arlington) obtained continuances on behalf of two nursing homes defending
themselves from resident-abuse lawsuits.2 The Observer reported that case records
revealed very modest participation by Sen. Harris. Apart from delaying proceedings, his
main contribution was to back the defense‘s disingenuous—and ultimately failed—
argument that the legislature did not intend for state regulatory reports to be used as
evidence in nursing-home lawsuits.3
Then-Rep. Juan ‗Chuy‘ Hinojosa (D-McAllen) was 2001‘s continuance poster boy. He
filed continuances on behalf of defendants in two lawsuits involving victims of Ford-
Firestone rollovers. Firestone hired this lawmaker just before the trials were scheduled to
begin.4 In denying that Firestone hired him solely as a delay tactic, the lawmaker
acknowledged the existence of a legislative-continuance market. Hinojosa said he turned
down offers from two other clients that just wanted to use him to delay litigation.5 Later
that session, the defense in yet another Ford-Firestone death case hired Rep. Terry Keel
(R-Austin) on the eve of trial. Keel is an established criminal attorney who lacked
experience litigating product-liability cases.
In 2001 Texans For Public Justice (TPJ) filed Texas Public Information Act (TPIA)
requests asking the 62 lawmakers who then were members of the Texas Bar (34 percent
of the legislature) to disclose all the legislative continuances that they had filed since
1998. Just 14 members (23 percent) responded positively by disclosing continuances or
saying that they had not sought any. The other 48 lawyer-lawmakers (77 percent) either
did not respond (37 percent) or failed to provide responsive information (40 percent).
Most respondents who refused the disclosure request used variants of a sentence that
insiders said was drafted by the Office of the Legislative Counsel. That sentence said,
―There are no records in this office that meet your request.‖
TPJ believed that TPIA governed legislative continuances, regardless of where they were
produced or physically stored. TPJ believed that TPIA applied because legislative


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continuances are an ex-officio perk that is only available to attorneys serving in the
legislature. To set a continuance-disclosure precedent, TPJ filed a lawsuit in state district
court in Austin in February 2002. That lawsuit singled out then-Rep. Rick Green (R-
Dripping Springs), whose TPIA response said, ―After consulting the services of the
Office of the Attorney General, it is my understanding that I am under no requirement to
comply.‖ No other lawmaker had cited the attorney general. If the attorney general had
formulated an opinion on continuance disclosure, TPJ wanted to disclose that, too.
Rep. Green‘s selection as TPJ‘s test-case defendant was serendipitous. Rep. Green
quickly settled TPJ‘s lawsuit by agreeing to disclose his continuances—including a
wonderfully self-serving one. Rep. Green had obtained a continuance a year earlier in
Rick and Judy Neill v. Rick and Kara Green. After the Neill family bought a leaky home
built by a Rick Green company, they filed suit to recover $23,000 in damages from this
lawmaker. Representing himself in court, Rep. Green secured a continuance to stall a
lawsuit that named him personally. As a pro se attorney, Rep. Green illustrated the need
for continuance disclosure. But his legal settlement left TPJ in need of a new defendant to
establish a disclosure precedent. Meanwhile Rep. Green failed to obtain a different kind
of ―legislative continuance‖—when voters threw him out of office in November 2002.
Prompted by media reports that three lawmakers had obtained at least six continuances
on behalf of corporations that marketed dangerous drugs, TPJ again invoked TPIA in
February 2003, asking these three lawmakers to disclose all of their continuances. Reps.
Ruben Hope (R-Conroe) and Aaron Pena (D-Edinburg) complied. But then-Rep. Gabi
Canales (D-Alice) responded with the magic words: ―There are no records in this office
that meet your request.‖ TPJ filed suit six weeks later to compel this lawmaker to disclose
all of her legislative continuances.
Newly elected Canales reportedly had obtained at least three continuances for Fen-Phen
defendant Wyeth.6 Indeed, Rep. Canales—who had nil experience with complex drug
litigation— actually got the drug giant two delays in one case. Hiring Rep. Canales
allowed Wyeth to successfully petition for the recusal of District Judge Terry Canales on
the grounds that he should not hear a case litigated by his daughter.7 Rep. Canales later
invoked this legal clout in an effort to discourage TPJ‘s lawsuit. Her attorney told TPJ‘s
counsel that Rep. Canales would seek a venue change to her home turf, where TPJ‘s
lawsuit would be found frivolous and TPJ would be forced to pay the defense‘s legal
costs. 8
During pretrial discovery, TPJ established that Rep. Canales‘ distinction between her
legislative office and her law office was a nebulous one. Rep. Canales acknowledged to
TPJ that her legislative district office and her law office shared the same address at 1600
E. Main in Alice, Texas. Two of the three workers employed in Rep. Canales‘ law office
also received payments from her political campaign for ―canvassing‖ and other services.
Yet Rep. Canales still argued that the legislative continuances produced by her law office
were off limits to her legislative office.
During pre-trial preparations, Governor Perry signed into law a 2003 reform bill
(HB1606) that explicitly requires lawmakers to publicly disclose legislative continuances.
Having effectively won a two-year disclosure battle, TPJ offered to drop its lawsuit.
Instead, Rep. Canales continued to pursue a counterclaim against TPJ, claiming that its
lawsuit was ―groundless‖ and filed for ―harassment.‖ Her attorney said she only would
dismiss her counterclaim if TPJ paid all legal costs and publicly stated that the lawmaker



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never had an obligation to disclose her continuances. As the reform that would clarify
this disclosure obligation awaited the governor‘s signature, a state trooper pulled over
Rep. Canales on the night of June 7 for speeding through her beloved Jim Wells County
with a defective headlight. The officer arrested the lawmaker after finding open bottles of
Johnny Walker and Crown Royal whiskey in her car. Voters removed Rep. Canales from
office five months later.



1. In a 1999 concurring opinion (988 S.W.2d 808) involving a legislative continuance obtained by Rep. Rene Oliveria, then-San Antonio appeals Judge

Tom Rickhoff wrote, “I must confess that I am predisposed to be against this legislative perk, for reasons completely outside this record. In Bexar

County during the 1970s legislative continuances were so common they enjoyed a set price.”

2. "Senator Harris for the Defense,” Texas Observer, April 16, 1999.

3. “The Defense Rests,” Texas Observer, May 14, 1999.

4. “Lawyers Allege Legislative Continuances Used To Delay Tire Trials,” Texas Lawyer, January 29, 2001.

5. “To Be Continued,” Texas Lawyer, March 26, 2001.

6. “Last-minute Legislative Continuance Frustrates Plaintiffs’ Lawyers,” Texas Lawyer, December 16, 2002.

7. “Fighting Back in Fen-Phen Cases,” Texas Lawyer, January 20, 2003.

8. Canales’ attorney, Will Pierson of Royston, Rayzor, Vickery & Williams, brought up his client’s father when he informed TPJ’s counsel that he would

seek a venue change from Austin to Alice. “I don’t want to threaten you,” Pierson said, “but Gabi Canales and her father are very powerful people in

Jim Wells County.” Pierson then warned that a court in that county would force TPJ to pay the defense’s legal costs for a frivolous lawsuit.




III. Continual Continuances

By the time the continuance-disclosure reform took effect on September 1, 2003,
Governor Perry already had extended the 2003 legislative-continuance season by
convening two special sessions on redistricting that year. Two weeks after the reform
took effect the governor convened yet another special session to promote Tom DeLay‘s
congressional redistricting agenda. Indeed, during the three and a half years from January
2003 through mid 2006, Governor Perry called an extraordinary seven special sessions
that lasted an average of 29 days each. Nine additional months during this period were
consumed by two regular sessions.
Yet the continuance season ran considerably longer. Legislator-lawyers can block court
proceedings from up to one month before a session starts to up to one month after it ends.
All told, court blackout days consumed 26 out of the 42 months from January 2003
through mid-2006.9 In other words, legislators could tie up court proceedings for more
than two years worth of this three-and-a-half-year period! Perpetual special sessions have
created a virtual open season for legislative continuances.




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Legislative Sessions, 2003-2006

                 Session     Start      End           Main Topic
                   Type      Date       Date     Cited By Governor
                 Special    4/17/06       ?    School Finance
                 Special    7/21/05 8/19/05 School Finance
                 Special    6/21/05 7/20/05 School Finance
                  Regular 1/11/05 5/30/05              Not Applicable
                 Special    4/20/04 5/17/04 School Finance
                 Special    9/15/03 10/12/03 Redistricting
                 Special    7/28/03 8/26/03 Redistricting
                 Special    6/30/03 7/28/03 Redistricting
                  Regular 1/14/03 6/2/03               Not Applicable

                           Source: Legislative Reference Library
Research for this report began prior to the advent of the current continuance season
surrounding the special session that Governor Perry convened on April 17, 2006. This
report analyzes legislative continuances reported to the Texas Ethics Commission from
the time that the continuance-disclosure law took effect in September 2003 through
September 2005, which marked the close of that year‘s continuance season.



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9. This takes into account that some of these legislative sessions occurred virtually back to back. In those cases, the 30-day continuance ―tail‖ that follows one session
overlapped with the 30-day continuance ―head‖ preceding the next session. These overlapping periods were not double counted, which would have exaggerated the
actual number of court blackout days.




IV. Defendants Dominate Continuances

Thirty-two lawmakers reported a remarkable 431 legislative continuances during the two
years studied. Criminal cases account for 63 percent of these continuance filings largely
due to the work of hyperactive criminal-defense attorney Roberto Alonzo (D-Dallas) (see
below). Lawmakers filed 29 percent of their continuances in civil cases, which would far
outnumber criminal filings were it not for Rep. Alonzo‘s prolific criminal filings. Finally,
family-law cases accounted for 8 percent of all continuances cases.

Criminal Defense Attorneys
Filed the Most Continuances


                                                                                  No. of                   % of
                                               Case Type                          Cases                  Cases
                                               Criminal                             272                    63%
                                               Civil                                126                    29%
                                               Family                                 33                    8%
                                                           TOTAL:                   431                  100%


Defendants Dominate
Civil Continuance Filings


                                                    Continunace
                                                                                         No. of               % of
                                                          Filings
                                                   In Civil Cases                        Cases              Cases
                                              For Defendants                                 88               70%
                                              For Plaintiffs                                 30               24%
                                              NA or Unclear                                   8                 6%
                                                                    TOTAL:                 126               100%
In theory and in practice, defendants seem to have a greater interest in delaying
both civil and criminal judgments. Defendants accounted for the vast majority of


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all legislative-continuance filings in both criminal and civil cases. In non-family
civil cases, defense attorneys accounted for the vast majority of the continuance
filings, outnumbering continuance filings by plaintiff attorneys almost three to
one. Such corporate giants as Farmers Insurance, Ford Motor Co., Wal-Mart and
Wyeth Pharmaceutical all retained lawmakers who filed legislative continuances.

Continuances By Big Corporate Defendants


                                                                 Continuance
       Corporate Client      Continuance Filer                    Filing Date
       Clayton Homes         Rep. Jim Solis (D-Harlingen)         2/24/2005
       Farmers Insurance Rep. Rene Oliveira (D-                   4/22/2005
                             Brownsville)
       HEB Grocery           Rep. Rene Oliveira (D-               4/22/2004
                             Brownsville)
       Ford Motor Co.        Rep. Vilma Luna (D-Corpus)           3/18/2005
       Wal-Mart              Rep. Rene Oliveira (D-               4/22/2004
                             Brownsville)
       Wal-Mart              Rep. Carlos Uresti (D-San            1/14/2005
                             Antonio)
       Wyeth                 Rep. Ruben Hope (R-Conroe)           8/14/2003
       Pharmaceuticals
       Wyeth                 Rep. Ruben Hope (R-Conroe)           9/12/2003
       Pharmaceuticals
Rep. Veronica Gonzales (D-McAllen) filed the boldest continuance request.
Although legislative continuances only apply to state court cases, Rep. Gonzales
sought one in federal court in McAllen in June 2005. Rep. Gonzales filed this
unusual request soon after she was assigned to defend alleged marijuana dealer
Israel Jose Juarez, Jr. The federal judge in this case does not appear to have
ruled on this continuance request. 10



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  10. One possible reason is that the judge granted a non-legislative continuance motion that Rep. Gonzales had filed three days prior to her request for a legislative
continuance. See case 99-CR-00580 in U.S. District Court for the Southern District of Texas, McAllen Division.




V. The Legislature's Continuance Kings

A tiny elite of lawmakers filed most continuances, with the top five filers
accounting for 81 percent of all the state’s legislative continuances. Rep. Roberto
Alonzo (D-Dallas) is the undisputed continuance king. This criminal-defense
attorney filed 241 continuances—or 56 percent of the total. Rep. Alonzo filed an
average of two continuances a week.

Lawmaker Continuance Count


                                                                                           Home                        No. of
                            Lawmaker (Party)                                                Town               Continuances
                            Rep. Roberto Alonzo (D)                                  Dallas                                         241
                            Rep. Phil King (R)                                       Weatherford                                       53
                            Rep. Carlos Uresti (D)                                   San Antonio                                       34
                            Rep. David Leibowitz (D)                                 San Antonio                                       11
                            Rep. Trey Martinez                                       San Antonio                                       11
                            Fischer (D)
                            Rep. Joseph Nixon (R)                                    Houston                                             9
                            Rep. Robert Puente (D)                                   San Antonio                                         9
                            Rep. Jim Dunnam (D)                                      Waco                                                7
                            Rep. Rene Oliveira (D)                                   Brownsville                                         7
                            Rep. Robert Duncan (R)                                   Lubbock                                             6
                            Rep. Ron Wilson (D)*                                     Houston                                             5
                            Rep. Harold Dutton (D)                                   Houston                                             3
                            Rep. Veronica Gonzales                                   McAllen                                             3
                            (D)
                            Rep. Toby Goodman (R)                                    Arlington                                           3



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              Sen. Chris Harris (R)       Arlington                  3
              Rep. Bryan Hughes (R)       Mineola                    3
              Rep. Aaron Pena (D)         Edinburg                   3
              Rep. Sylvester Turner (D) Houston                      3
              Rep. Ruben Hope (R)         Conroe                     2
              Rep. John Mabry (D)*        Waco                       2
              Sen. Royce West (D)         Dallas                     2
              Rep. Joseph Deshotel (D) Beaumont                      1
              Rep. Craig Eiland (D)       Galveston                  1
              Rep. Dan Gattis (R)         Georgetown                 1
              Rep. Will Hartnett (R)      Dallas                     1
              Rep. Abel Herrero (D)       Corpus                     1
              Rep. Vilma Luna (D)         Corpus                     1
              Rep. Todd Smith (R)         Euless                     1
              Rep. Jim Solis (D)          Harlingen                  1
              Rep. Jack Stick (R) *       Austin                     1
              Rep. Robert Talton (R)      Pasadena                   1
              Rep. Yvonne Gonzalez T. Alice                          1
              (D)
                                               TOTAL:             431
                             *No longer in legislature.
Rep. Alonzo’s closest competitor is Rep. Phil King (R-Weatherford), who filed 53
continuances (12 percent of the total). Rep. King’s cases principally involved civil
suits between businesses or family members. Rep. Carlos Uresti (D-San
Antonio) came next with 34 continuances (8 percent), which mostly involved
criminal-defense cases. Only two other lawmakers filed more than 10
continuances. They were San Antonio Democrats David Leibowitz and Trey
Martinez Fischer, who filed 11 continuances apiece.




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VI. Serial Continuances

Given the recent expansion of the continuance season, some lawmakers filed
one continuance after another in the same case. Lawmakers filed more than one
continuance in a total of 82 cases. Rep. Alonzo again claimed the title for such
serial continuances, filing an extraordinary five continuances in The State of
Texas v. Omar Hernandez. This case, before the Municipal Court of Grand
Prairie, was the only “quintuplet-continuance” case found. Rep. Alonzo filed his
first Omar-Hernandez continuance in December 2004. He filed the fifth one just
six months later in May 2005.
Besides Rep. Alonzo, who had four quadruple continuances cases,11 Rep. King
was the only other lawmaker to report four continuances in a single case: York
International Corp. v. Lightfoot Mechanical, Inc. in Weatherford’s 43rd State
District Court. Finally, Rep. Uresti was the only lawmaker other than Reps.
Alonzo and King to exceed two continuances in a single case. Rep. Uresti filed
triple continuances in two separate cases.12

Multiple Continuances Filed In A Single Case


                             Total         No. of        No. of       No. of       No. of
                         No. of Cases Double-            Triple- Quadruple- Quintuple-
                         With Multiple      Play         Play         Play          Play
Lawmaker (Party)         Continuances Cases              Cases        Cases        Cases
Rep. Roberto Alonzo                   55           39         11               4            1
(D)
Rep. Phil King (R)                    17           11             5            1            0
Rep. Carlos Uresti (D)                 4             2            2            0            0
Rep. David Leibowitz                   2             2            0            0            0
(D)
Rep. Trey Martinez                     1             1            0            0            0
Fischer (D)


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Rep. Robert Duncan                     1            1      0              0              0
(R)
Rep. Veronica                          1            1      0              0              0
Gonzales (D)
Sen. Royce West (D)                    1            1      0              0              0
                    TOTAL:            82        58        18              5              1
Rep. Phil King claimed 11 continuances in five related cases filed in four different
state courts. All of these cases grew out of a group of predatory-lending
executives fighting over stock options. The fun began in 1998, when an Arlington,
Texas-based pawn shop outfit, First Cash Financial Services, bought a
California-based check-cashing business and named its chief, Blake Miraglia, as
a division president. Relations soon soured. Miraglia quit, filing a lawsuit alleging
that First Cash cheated him out of promised stock options.
Miraglia and his allies also posted unflattering information about First Cash on
the Internet, prompting First Cash officers and directors to retaliate with
defamation lawsuits. As Miraglia’s defense attorney, Rep. King filed 11 related
continuances during a six-month period. Senator Chris Harris (R-Arlington)
squared off against Rep. King in at least one of these cases. Yet Harris did not
report any legislative continuances in these cases.

Rep. King Filed 11 Continuances
On Behalf of Pawn-Shop Executive Blake Miraglia


Continuance                                              State District
                                                          Court No.
      Date    Case Style                                   (County)           Case No.
                                                                          236-
  2/15/05     Phillip E. Powell v. Blake Miraglia et al. 236 (Tarrant) 203613-03
              Tara Schuchmann v. Blake Miraglia et
  2/15/05     al.                                        134 (Dallas) 03-13611-G



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                                                                                                                           048-
    2/17/05            Rick Wessel v. Blake Miraglia et al.                                       48 (Tarrant) 203617-03
    6/28/05            J. Alan Barron v. Blake Miraglia et al.                                   415 (Parker) 51257
                                                                                                                           048-
    6/29/05            Phillip E. Powell v. Blake Miraglia et al.                                 48 (Tarrant) 203613-03
                                                                                                                           048-
    6/29/05            Rick Wessel v. Blake Miraglia et al.                                       48 (Tarrant) 203617-03
                       Tara Schuchmann v. Blake Miraglia et
    6/29/05            al.                                                                       134 (Dallas) 03-13611-G
    8/16/05            J. Alan Barron v. Blake Miraglia et al.                                   415 (Parker) 51257
                                                                                                                           048-
    8/16/05            Phillip E. Powell v. Blake Miraglia et al.                                 48 (Tarrant) 203613-03
                                                                                                                           048-
    8/16/05            Rick Wessel v. Blake Miraglia et al.                                       48 (Tarrant) 203617-03
                       Tara Schuchmann v. Blake Miraglia et
    8/16/05            al.                                                                       134 (Dallas) 03-13611-G



11. These were The State of Texas v., respectively, Amelia Juarez, Andres Torres, Jose de Jesus de la Rosa and Yahaira Ibarra.

12. These were the Comal County Court cases styled The State of Texas v., respectively, John Zillman and Paul Sandoval.




VII. Personal Continuances

Some continuances were of a more personal nature. At least six lawmakers
claimed continuances in cases naming themselves or apparent family members
as defendants.
Rep. Carlos Uresti appears to have filed continuances in two cases involving
citations against members of his family. Bexar County officials cited an Alberto V.
Uresti in May 2005 for continuing to store junk vehicles at his property after he
was ordered to remove them. When contacted about the case, the court clerk
said, “Let me see if this is the case in which there has been one continuance filed


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after another.” The clerk said nothing developed from this citation and
prosecutors filed a second one against the same property owner for the same
violation five months later.13
Rep. Uresti also claimed a continuance in a case involving defendant Lorenzo N.
Uresti. While Lorenzo Uresti was driving a Uresti Sons Trucking vehicle in
January 2005, a trooper cited him for a defective light, failing to use seat belts
and not displaying valid insurance and inspection credentials. That truck was
registered to Alberto Uresti at the same address cited for junk vehicles. One of
Rep. Uresti’s legislative aides declined to say if the lawmaker is related to
defendants Alberto Uresti and Lorenzo Uresti. She directed TPJ to call Rep.
Uresti’s law office. Rep. Uresti—who is the son of an Alberto Uresti—did not
respond to inquiries left there.
Rep. Roberto Alonzo, who has a brother named Victor, filed a continuance last
year in the State of Texas v. Victor Alonzo. The State Office of Administrative
Hearings, where Rep. Alonzo filed this continuance, referred questions about the
case to the Texas Department of Public Safety division that revokes drunk
drivers’ licenses. That office told TPJ that it could not access information on the
case without the defendant’s driver’s license number or date of birth.14 Rep.
Alonzo did not return calls about the case.
Rep. Harold Dutton (D-Houston) filed a continuance in 2003 as an attorney
defending his daughter from a lawsuit filed by Melange Fine Cuisine. Melange
alleged that Melonie Dutton failed to pay half of a $46,067 bill that she incurred in
2000, when Melange catered her 500-guest wedding at Houston’s Rice Hotel.15
Rep. Craig Eiland (D-Galveston) filed a continuance last year after being sued by
an inmate who is serving an 18-year rape sentence. Rep. Eiland sued prisoner
Robert Holzwarth first on behalf of the woman that Holzwarth raped in 1993.
Although the victim dropped her lawsuit, Holzwarth counter-sued Rep. Eiland and
is appealing a summary judgment against the prisoner in that case. Houston’s
151st District Court said it could not immediately provide case documents, which
were being scanned.



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Rep. Robert Puente (D-San Antonio) also claimed a continuance last year in a
lawsuit filed against him by a plaintiff whom the lawmaker described as “a rogue
tenant” of a building that the lawmaker owns. The lawmaker said he prevailed in
this case by arguing that this plaintiff, who subleased space from another tenant,
had sued the wrong defendant. Rep. Puente says he successfully argued that
the plaintiff should have sued the original tenant rather than the building’s owner.
The Bexar County Justice of the Peace clerk did not respond to repeated
requests for filings in this case.16
Rep. Trey Martinez Fischer (D-San Antonio) claimed a continuance in 2004 in a
paternity lawsuit. A legislative aide said the lawmaker is handling this case pro
bono for his five-year-old niece.17




13. Prosecutors filed both citations with Bexar County justices of the peace. The citations are No. 50-N-05-00379-01 and 50-N-05-00640-01.

14. Case No. 2004-1250882, State Office of Administrative Hearings, Dallas County.

15. Case No. 756209 in Harris County Civil Court At Law No. 1.

16. Loren Lombardi v. Robert Puente, Bexar County Justice of the Peace Precinct One, Place Two, case number 12-S-04-000212-01.

17. Case No. 2000-EM5-05078 in the 166th State District Court in San Antonio.




20.
http://wyom.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=54870

                                                       CLARK v. STATE
                                                             1962 OK CR 29
                                                                 370 P.2d 46
                                                    Case Number: A-12988
                                                       Decided: 03/07/1962
                                        Oklahoma Court of Criminal Appeals


Cite as: 1962 OK CR 29, 370 P.2d 46




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      Appeal from the Court of Common Pleas, Tulsa County; James P. Geoppinger, Judge.

O.W. Clark was convicted of the crime of assault and battery, and appeals. Affirmed.

Howard, Carr & Harris, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

¶1 This is an appeal by O.W. Clark, plaintiff in error, defendant below, who was charged by
information in the court of common pleas in Tulsa County, Oklahoma, with the crime of assault
and battery, allegedly committed against Jerry Eugene Snelling on May 7, 1960 in said county.

¶2 The defendant waived a jury and was tried by the court, who found him guilty and fixed his
punishment at ten days in jail, and a fine of $100. Judgment and sentence was entered
accordingly, from which this appeal has been perfected.

¶3 This case was long delayed by legislative continuance, and was stricken because of the
state's failure to file a brief. The matter was finally argued without the aid of the State's brief, and
has been decided without aid of a brief by the State.

¶4 Briefly, this case arose on May 7, 1960 because Snelling ran a picket line with a load of oil.
After his delivery of the oil, he was overtaken, pinned to the side of the road and compelled to
stop, by three union men, Thompson, Autry and Clark. These men got out of their car and
attacked him. Autry opened Snelling's truck door, and Clark said, "Pull him out of the pickup and
we'll beat him up." Autry and Snelling started fighting. One of his assailants held Snelling's legs
and Clark got him around the neck, choking him, and every once in a while hitting him. Autry was
also hitting him. They threw him out of the truck on the ground and Clark got his legs around
Snelling's neck and beat him in the back. The prosecuting witness said he could not tell how
many times Clark struck him, he didn't count them, but he did see him hit him.

¶5 It was stipulated that if Dr. Robert N. Stover were present he would testify that he examined
Jerry Eugene Snelling on May 7, 1960 and found him to have sustained head, face and neck
contusions, abrasions and muscle spasm, apparently from a traumatic episode which had been
related to him by Jerry Snelling.

¶6 The defendant did not testify in his own behalf, but Autry and Thompson testified for him.
Thompson testified that Clark did not touch Snelling. On this point Thompson when questioned as
to who hit Snelling, first took the Fifth Amendment on the ground his answer might incriminate
him, when he was asked which of Clark's accomplices hit Snelling first, he testified it was "just a
scuffle".

¶7 Autry testified they overtook Snelling and Thompson went back to talk to Snelling. Autrey said
he looked back and saw them fighting. He related that at no time did Clark touch Snelling or at
any time hit him, or even restrain him. Autry testified he got between Thompson and Snelling and
tried to stop them. He just pushed Clark back, he testified.




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¶8 The assistant county attorney, Mr. David Hall, in rebuttal testified for the state on the question
of whether Clark touched the victim, Snelling. He said that his testimony was from notes he had
made. The gist of his testimony was that on May 16, 1960 he had interviewed the defendant.
Clark came to his office voluntarily between 1:30 and 5 in the afternoon and stated, after warning
concerning what he might say, that a person he could not identify in the scuffle hit Snelling in the
forehead. That Snelling made a pass at the man, and the only thing Clark did was, he got him by
the arm, and told Snelling the best thing for him to do was to go right straight down the road. The
defendant contends this was improper rebuttal, highly prejudicial, and proper only as evidence in
chief.

¶9 The evidence in this case was conflicting. On waiver of a jury, the judge is the sole trier of the
facts, after hearing the evidence, and observing the witnesses where there is any competent
evidence to support the conviction, his decision carries the same weight as a verdict of the jury.
Dugger v. State, 97 Okl.Cr. 97, 258 P.2d 949; McCarthy v. State, 91 Okl.Cr. 294, 218 P.2d 397.

¶10 The testimony of the victim of this dispute and the stipulated testimony of Dr. Robert N.
Stover made a prima facie case. The testimony of the defendant's witnesses clearly presented a
case of testimonial hedging, and is entirely insufficient to overthrow the State's case. The trial
court did not err in overruling the defendant's motion for acquittal.

¶11 It is contended that the trial court erred in permitting the assistant county attorney to testify in
rebuttal, since the testimony given by him was admissible in chief only. Further, that he was not
endorsed on the information, and the county attorney should not be permitted to be a witness in a
case he is prosecuting. Moreover, he says it was error to permit impeachment of one witness by
the statement of another.

¶12 On the point of whether the county attorney should have been permitted to testify in rebuttal,
under the assertion it should have been offered in chief, this court has spoken on that issue
numerous times. In Pulliam v. State, 61 Okl.Cr. 18, 65 P.2d 426, this court said:

                 "Rebuttal evidence in criminal case is that which is given by the state to explain,
                 repel, counteract, contradict, or disprove evidence introduced by or on behalf of
                 the defendant.

                 "Evidence tending to clarify a disputed point may be properly rebuttal testimony,
                 notwithstanding the fact that the same testimony might have been introduced in
                 chief.

                 "When the state makes out a clear case in chief the fact that certain testimony
                 was reserved for rebuttal, which would have been admissible in establishing the
                 case in chief, but which is clearly in rebuttal of a material defense, or testimony
                 introduced in defense, does not render the same inadmissible."

¶13 In Bowman v. State, 82 Okl.Cr. 199, 167 P.2d 663, it was said:

                 "In nearly every case, we find evidence introduced as rebuttal which might
                 properly have been introduced in support of the case in chief, but this is not the
                 sole test. The question which arises and is directed to the discretion of the trial
                 court is whether the evidence offered in rebuttal is a rehash of the State's case in
                 chief, or whether it pertains to some material issue which has become important
                 because of effect of evidence introduced on behalf of defendant."

¶14 See also Hall v. State, Okl.Cr., 309 P.2d 300.



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¶15 It has been repeatedly held that such matter is within the trial court's discretion, in
furtherance of justice, to permit rebuttal testimony which was competent evidence in chief.
Tingley v. State, 16 Okl.Cr. 639, 184 P. 599.

¶16 The fact the rebuttal witness is not endorsed on the information does not prevent the use of a
witness in rebuttal where he is called in good faith, merely because his evidence or some part of
it might have been introduced in chief. Phenis v. State, 28 Okl.Cr. 142, 143, 229 P. 652.

¶17 The Constitutional (Art. II, § 20) and statutory (22 O.S. 1961 § 831 [22-831]) provisions in
regard to endorsement of witnesses on order of the trial court, even in a capital case, have been
held not to divest the trial court of all discretion. These matters have been held to be matters of
the trial court's discretion, and are grounds for reversal only in case there is a showing of abuse.
Quinn v. State, 55 Okl.Cr. 116, 25 P.2d 711; O'Neal v. State, 55 Okl.Cr. 388, 31 P.2d 886.

¶18 On the question of whether the county attorney may be a witness in a case he is prosecuting,
the weight of authority is to the effect that he may. State v. Lee, 203 S.C. 536, 28 S.E.2d 402, 149
A.L.R. 1300, 1304, Anno. 1305, in speaking of the discretion to be exercised in such cases, says:

                 "This discretion is to be exercised, especially in criminal cases, with due regard
                 to the peculiar circumstances of each case, and the nature of the issue to which
                 the evidence is adduced. State v. Lyle, 125 S.C. 406, 118 S.E. 803."

¶19 It appears there is no question that in a proper situation the county prosecutor is a competent
witness. What we believe is the correct rule on this issue is laid down in Robinson v. United
States, 8 Cir., 32 F.2d 505, 66 A.L.R. 468:

                 "Circumstances might arise in the trial of a case making it necessary that the
                 prosecuting attorney or his assistant become a witness, but these cases are few
                 and exceptional. The function of a prosecuting attorney and a witness should be
                 disassociated. A jury naturally gives to the evidence of the prosecuting attorney
                 far greater weight than to that of the ordinary witness. Circumstances might exist
                 where the prosecutor could not withdraw from the case. He might be the only
                 attorney familiar with the case, and the only one engaged in the prosecution. The
                 tendency of a situation where a prosecutor in a criminal case becomes a witness
                 for the government is to prevent somewhat that fair trial to which a defendant is
                 entitled. If this were the only question in the case, it might not be sufficient to
                 warrant a reversal, but the practice of acting as prosecutor and witness is not to
                 be approved, and should not be indulged in, except under most extraordinary
                 circumstances."

¶20 We are of the opinion that the requirements of the case at bar made it permissible that he be
allowed to testify herein. It seems that the defense was adroitly laid to make it appear by the
testimony of Thompson and Autry that the defendant Clark never laid a hand on Snelling. Clark
did not testify, but Autry testifies the defendant Clark did not lay a hand on Snelling. Thompson
availed himself of the Fifth Amendment as to whether he struck Snelling.

¶21 The county attorney testified that he had a conference with the defendant Clark in which he
admitted someone whom he could not identify struck Snelling, and that Clark himself took hold of
his arm and told him in substance to "go on down the road and get away from here."

¶22 This evidence so far as the State's proof was concerned was negligible. In fact, it was
favorable to the defendant, but even if it were error to admit this proof, it was harmless as to the
defendant Clark. We have repeatedly held that error without injury is harmless. It had no value
except to refute the statement of Thompson and Autry that Clark did not lay a hand on Snelling.



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The competent evidence offered in chief by the State clearly indicated that Clark did help beat the
victim Snelling. The medical proof indicates it was a rather severe beating. In any event, this
presented a question of fact for the court, and he having spoken adversely to the defendant, his
decision is binding on us, where there is any evidence reasonably tending to support his findings.
There is such evidence under the circumstances herewith presented.

¶23 In Lair v. State, Okl.Cr., 316 P.2d 225, 71 A.L.R.2d 856, we held that where three or more
people are assembled to do an unlawful act, to the terror and disturbance of others, such breach
of the peace may constitute an unlawful assembly. Therein we said:

                "Society has assumed labor's part and discharged its responsibility by
                recognizing certain procedure as the lawful means of persuasion and picketing.
                [T]40 O.S. 1951 § 166 [40-166]; Ex parte Sweitzer, supra [13 Okl.Cr. 154, 162 P.
                1134]. But, these prescriptions do not countenance threats or acts of violence."

¶24 For the foregoing reasons, the judgment and sentence is affirmed.

NIX, P.J., and BUSSEY, J., concur.




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