Ex parte Mays (212 S.W.2d 164, 1948)

GRAVES, Judge.

In the Criminal District Court of Tarrant County, Texas, on May 6, 1948, the grand jury returned an indictment against William R. Ray, charging him with the offense of rape. On that date the trial court set this matter for trial on May 24, 1948. After the return of the indictment on May 14, 1948, the judge presiding over said court appointed three attorneys to represent the accused person, among these attorneys being the relator herein. A precept setting forth the action of the judge was issued on May 15th following, and service on relator thereof is shown to have been had the same day. On the day of such service, relator filed an affidavit with the judge, which affidavit was regarded by the trial court as contemptuous and which was the basis of a citation of relator to show cause why he should not be held in contempt. This matter was heard on May 21, 1948, and resulted in a finding by the trial court of a contempt upon the part of relator, and a fine of $100 was assessed against him.

Upon an application to this appellate court, it issued its writ of habeas corpus, and the matter is here present for adjudication.

The district judge testified that on the morning of May 14th, he got in contact with the wife of the accused in order to ascertain whether or not she had secured counsel for her husband’s defense, and she informed him that she was negotiating- with some Dallas attorneys whom she thought she would be able to employ; that he understood she had an automobile she could use for such purpose, as well as another car that she could also probably use for that purpose. She asked for more time, and the judge set 3:00 P.M., May 15th, as further allotted time. At such last date, the wife of accused informed him that “they just wanted too much money,” whereupon the court proceeded to appoint three attorneys to defend Ray in the following procedure. He had the District Clerk to call some 20 odd lawyers who had practiced in his court during the past year. Upon their appearance he placed slips of paper with their names thereon in a hat and drew therefrom the names of Byron Matthews, Paul J. McClung and Clifford Mays, the relator. Mays was not there present but was engaged in the trial of a case in another court. The judge then ’phoned Clyde Mays, a partner of relator, and informed him of the appointment of Clifford Mays. On the following morning there appeared in the newspapers a statement of a reporter that relator had told such reporter that he had refused to serve as an attorney to defend Ray. No further direct or indirect conversation with relator was had by the court prior to relator’s appearance when cited for contempt. It seems that in the interview between relator and the newspaper reporters had soon after relator’s appointment and while he was engaged in another court, he told such reporters that he was prejudiced about the defendant’s guilt; that he “had helped some officer at the Air Base in the confession that the defendant was supposed to have made; that he had helped the officer with the form of it, and that he had advised with that officer about it.” It is further shown that relator’s firm had been approached relative to accepting employment in Ray’s defense and had refused such employment. It is also further shown that the accused’s wife could probably have raised about a thousand dollars for the purpose of hiring attorneys for his defense.

Immediately upon being served with a precept announcing his appointment as an attorney to represent Ray, the relator filed with the court the following affidavit:

“Before me, the undersigned, a Notary Public, in and for Tarrant County, Texas, on this day personally appeared Clifford Mays, who after being by me duly sworn, states upon his oath as follows:

“ T have just been served with a precept to the effect -that I have been appointed as one of the attorneys by the Honorable Willis McGregor, Judge of the Criminal District Court of Tarrant County, Texas, to represent William Ruthes Ray, the man who is charged with criminally assaulting a nine year old girl.

“ ‘With all due respect to the Court, I desire to make known to his Honor that I am familiar with the material evidence in this Cftse and that I have formed a definite and v