Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS . AUSTIN

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~o;crable' Robert F. P&en, Jr. county Attoriloy ~ata~:orda County COYCity, Texas

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authority to ron-,orable Robert F. Pedon, Jr., PaSo 2

state bearing directly upon the oubject - tend to throw sny light upon the quastlon before We turn, therefore, to the oommon law, %ause our statute further provides that Menover it is found that this Co:e fail: to provldo a rule of procedure in any psrtiou- lar atate of case whioh may arise, and is, therefore, defeative, ths rules or the com- mon lax shall be applied and govern.’ Past. Dig. 8 Art, 2493, ‘“The subJect is thoroughly and ably dis- cussed in Baxter v. The People, 3 Ill. (Gilm.) 384, 385, -3’e take the liberty of quot- i’ng’fully from the opinion of Caton, J., de- livered in that case, He says: *Had tho court the rim to receive the vcrdiot and pivnounoo judgment .on Sunday? That courts ha-fe no right to pronounce a judgment, or do ~. any~other- aot strictly judicial, on Sunday, unless expressly authorized by statute, aeems to be too well settled to admit of doubt. bv the decisions in En&and and in . this country. The leading oaee on this sub- ject is that of Sv.xnn v. ilroxn, 3 Burr,. 1595, where it was helwthe court of Kina’s Benoh that the court o ouldnot sit on Sunday and give a valid: ju-?gment, it not being a judicial day. It appears that anoiently, among Christians, courts did sit on Sunday, but by a canon of the church made in the year 517 this was prohibited, and that rule seems to have been adopted into the common law, and may be considered well settled. Put this prohibition seems to be confined to the enter- ing of judgments of record, and other like judloinl acts, for vie learn from the opinion of lord Uansfiold in the same case that it wss assigxd for error in th’e cxohoqitier that the information (for engro-sing butter and cheese contrary to the stztutc) wcs orhibitcd to the court on the 13th day of October,

Rcsorable Robert 1. Peden, Jr., Page 3

which in the year (20 Jac. 1) was on Su$y, and; therefore, not *dins .iuridicus.” question seems to have bean frequently before the English courts and the courts of zest of the statpa of the Union, and the doclsions are very uniform that. a judgment cannot be entered of record on Sunday. 3 Thomas’ Coke. 354; 2 21. COQ. 277; t~acke~.da~~is *, 5 Coke, 66; Pearce v. Xtvmod, 13 [<ass. 324; Chapmn Y. Tne %tat3, 5 Bm (Ind.) 111; N-lbors v. The :X&o, 6 Ala. 290; 4 N, 11. 15S;*Authut v. ?o;b;,;~2Rbb;.;89; Stor:r v. Fllott, 8 Lo\.. To thzse authorities we say a2d Col?nan v, l?!cnCerscri, Litt, (Xy. ) &l., Gas. 171;mrxcrker v. The People, 5 i;‘end. 530; - Rarpor. v, T’?e htz=t9, ?.+3Texas, 431. Vh3se cases all s-how that a ju:&zatit~ entered of rcocrd on Sunday is .not only erro- neous, but is absoiutely void. *But although the law am=19 to be nell settled th?it a judgmnt caimot be entered Of record on Sundey, yet I think It equally well nettled thzt a verdict of a jury aay be enter- ed of record on Suadu~. See i’ollfYiIin~ authori- ties: Heidkcppw v. Cotton, 3 Xass. 55; mhtaling v. Csbom, 15 Johns. 118. ILtll::>r v. ?nPlisn, i6;s (5. c.) 586; & v. Phlnl~Xs. . Via verdict of’ the jury nay be returned and r.ecoived on Sunday. cOy;l: v. Silcox_, 5 Ind. 370; ?,o:: :er y. XCCOll~, 9 h3, 587; ::ccork& y. The Etste, 14 In&. 39; & Y. The i;ta.te, 14 In;\. 135; Zebbor v. &mill, 34 N. ri. 202; Robsrts V. G-3, 5 xun?FEX. ), 558. “;‘ie fully OGilCUr in t.he’conclusion BY- rived at by the lccrnefi judee in Baxter v. Th Pro::le, cxplocsed in thcso xo:ordr;- “;le think t&c authGriti*-n clearly establish th::t, ~AXUIa cause is fxtriitted to the jury before twelve of clock 5aiurday nQht, the vcrdiat of

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Honorable Robert F, Poden, Jr., Page 4

.I . tho jury may be received 03 Sunday; but that it 10 not a judicial day for tha purpose of rendorinf! any judgment, and if it attempt to render a judment, still in law it would be no judgment, but absolutely void, and will he so declared, and my be revsrsed by this oourt. Not that euch reversal will take tram it any force or vitality, for ltmvar had any, not having been rendered by a court having authority to render any udment whatever at this ti.me.1 ,.Ib. 38 i! ." The .Shearman case, supra, has been followed by the Texas Cotit of Criminal Ap eals in tha reoent casea .of Bless V, State, (19344) 75 S..W. T21%) 694 and Guerra v. State, (1939) 136 Texas Crlrnlnal Reports 412. i’lo quote from the .. . court’s opinion in tho Guerra case a8 follbwsr “It appe&s t rom bill of oxcopt ion No. 1; that the court char&i the jury on Sun- .day, &roh .6, 1938, at lr53 P,hL Cho.r&ing theJury is strictly a judicikl act. Xoss '9, State, 173 S. Yf. 859. Courts havo no right to profiounce a judgment; or do any other act striotly judlaial., on Sunday, In. the absence of a pemisoive otutute. Blono V, State, 75 S. W. (Zd) 694; Shearman v. St&e, 1 Tex. App. 215, Xe have in this state no statute pemltting the jury to be charged on Suncay. In Moos0 v, Stato, su;rra, the oourt said: ‘Char&n% the jury is Q high judicial function, cm1 it cannot be lawfully exercisea on Sundtiyrt Ye are con- strafnod to hold that reversible error 1s presontca.*F You arc respeotfully a&vi~;cd that it is the opin- ion of this deprultmsnt that pleas of E;uilty aoceptad ana jU3gien~ts rendered on Sundays .fn misdomanor cases are In- valid.

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Footnotes

[11] be seeen t&it,. in the case Y:Q the Sm*iay upon v;hich the pro- tad w;:as in the very Sunday i3zgediutely follo~?:ing or sucoccdi>g tho 0xpiratIon of the roguli-r tom, w>ioithr:l* or the st:i,tuteo above quoted - and via baliova t'hey cre all the lnvr enuctcd in this ..