HomeMy WebLinkAbout1957-10-29-0200PM-Speciali
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Special Msstim - October 29. 1937.
A spacial meeting of the Commission rs Caul of Brazos County, Tema, was bald
in the Cosmuissioaert Courtroom is the courthouse, at Bryan, beginning at 2s00 o'clock p. m.,
on Tuesday, October 29, 1957, with the folloving presents
A. S. Mare, County Judge, presiding;
Raymond A. Bolan, Commissioner of Precinct Member l;
George Duna, Commissioner of Precinct Number 2;
Clyde J. Porterfield, Commissioner of Precinct Number 31 and ,
Newton Bur21n, Commissioner of Precinct Number 4.
~ County Clark A. B. Syptak was absent on account of illness of his am, and Mrs.
Inane Maeucai, SscrstuT to the Court and the County Judges recorded the proceedings of
this nesting.
The Court received, examined, approved and ordered filed and recorded the bens
for $2,500.00, of Orally L. Whitener as a Public Weigher in and for Justice Precinct No.
4, of Brazos County, Tema, dated October 24, 1957, and executed by The Fidelity t Casualty
Insurance Company of New Tork, by Glynn A. mlli.:n., AttosnW-la-Fact, with oath of office
consented October 24, 1957, all as authorised by Article 5704, of the Revised Civil Statute*
of Texas.
Attorney Mac L. Sennett, of Normanges, Tens, who had repnesmted the defendants
is the scatter, presented a certified copy of the judgment entered is the Burkhalter case
m October 22, 1957, and which is copied is lull below:
NNO. 3973
THE STATE OF TEW, EX RSL 0 IN THE MSTRIDT COURT OF
MARJORIB S. BURIUMTER
9S. MUM OOUM, T E X A S
A. S. WARS, Er AL d 85TH JUDICIAL DISTRICT OF
TiOTAS
JDGIIFltT OF = COURT
On the 24th day of October, 1957, came an to be board the above
numbered and entitled cause, wherein The State of Texas, is its own accord
and an relation of Marjorie S. Burkhalter are plaintiffs, in Quo Warrants,
and Marjorie S. Burkhalter is plaintiff ladividua lys and A. S. Wars, ConaV
Judge of Braces Canty, Texas] Newton Bur2Sa, Clyde Porterfield, George Dram
and Raymond Holm, all County Commissioners of Brazos County, Taw, comprising
c the Brazos County Commissioners Court, Monroe Bond and Brazos County, Texas,
? we all defendants;
And the defendants having timely presented their Motions and Pleas
r y. to the jurisdiction of this Court and their Plea is Abatement, and the Court
having considered the same and overruled said Motions and Pleas,
And the defendants having presented their Special Xweptions
filed herein and the Court having heard the same presented in due order
and having considered the saws and having overruled said special exaeptiens
a with the exception of Exception No. 29, which was mastains¢;
And the Court having considered the Plaintiff's, the State of Ten0,
Notion to dismiss defendant's alternate plea or action, and cross-sotloo,
seeking motor of Hre. Marjorie S. Burkhalter, in the alternative as pleaded,
and having considered said Motion to Dismiss, the Court having sustained said
Notion, the State of Texas having refused to support said ouster action above
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October 29, 1957.
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To all of which action of the Court the defendants in open Court
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duly excepted and objected, the Casrt hereby -king the orders as above Y `
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upon the kotims. Pleas and Exceptions above;
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And whereupon came all of the parties above named, both plaintiffs
and defendants, and announced ready for trial, and the pleadings having been
read to the Court and jury, and came a jury of twelve good and lawful persons,
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who, being duly impaneled and sworn and having heard the said pleadings, the
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evidence and the argument of counsel, on their cathe do, for their verdict,
in response to the following special issues, definitions and explanatory
instructions submitted to them by the Court, on the 16th day of October,
r 1957, make the following respective findings
"CFNTLEM OF TAE JURY:
"This case will be submitted to you on Special Issues.
Your answers to such issued you will make on a separate sheet which
win be furnished you. You will not be concerned with the effect of
your answers on the parties to this cause nor the judgment that the
court may render after considering such answers.
"You are the exclusive fudges of the facts proved and the
credibility of the witnesses, and the weight to be given their testimony,
but you are bound to receive the law from the Court %hich is contained in
this Charge and be governed thereby.
"By the term 'preponderance of the evidence', L want the
greater weight of the credible testimony. ,
"By the team 'duress' as used in this Charge, is meant any
coersion of another, either mental or physical causing such person to
act contrary to his own free will or to submit to a situation or condition
against his own volition or interest.
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"Now, bearing the foregoing instructions in mind, you sill answer
the following Special Issues.
"Special loans so. 1
Do you find from a preponderance of the evidence that Marjorie S. Burkhalter
was under duress, as that taro in herein defined, when she tendered her
resignation from the office of Tax Assessor-Collector?
Answers kShe was under dureea" or "She was
not under duress".
Answers She was
J "Special Issue No. 2 t
Do you find from a preponderance of the evidence that Marjorie S. Burkhalter
was acting under duress, as that term is herein defined, when she failed
to withdraw her resignation as Tax Assessor-Collector at the meeting an
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cF July 299 19574
q Answers 'She was acting under duress' or 'She
was not acting under duress'
_ i Answers She was acting under duress.
F "Special Issue No. 3
Do you find from a preponderance of the evidence that,County Judge A. S. Mare J
represented as a fact to Hrs. Marjorie S. Burkhalter, at the meeting in the
afternoon of honday, July 29, 1957, that if she withdrew her resignation from
her office, the Commissioners Court itself would suspend her frvm her said
officer
Answers "We do" or "Me do not'
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Answers 'Me do'
~i "If you have answered the foroping Special Issue no do", and only in that
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event, then answer the followings
"Special Issue N0. $
Do you find from a preponderance of the evidence that such representation,
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if any, was made by County Judge A. S. Mare, to Hrs. Marjorie E. Burkhalter,
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as a material inducement to permit her resignation to be accepted?
Answers'Me do$ or 'Me do not'
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Answers 1Wb do'
"If you have answered the foregoing Special Iesw rW do', and only in that
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event, than answer the followings
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October 29, 1957.\
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"Special. Issue No. 5
Do you find iron a preponderance of the evidence, that Mss. Marjoris
E. Burkhalter would have withdrawn her resignation if said representation,
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it any, had not been rode by Judge A. S. Mare?
OV
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nswers
Answers We do
"Special Issue No. 6
Do you find from a preponderance of the evidence that Mrs. Marjorie
2. Burkhalter permitted her resignation from the office of Tau
Assessor-Collector of Brazos County to be accepted by the Brazos
County Cam' sionars Court, because of undue influence, it my, an
the part of County Judge A. S. Mare?
Answers 'It was the result of undue influence"
of 'It was not the result at undue influence'
In connection with the foregoing Special Issue No. 6, you are
Instructed that the term 'undue influence' means that which compels
the person involved to do that which is against his will from fear, the
desire for peace, or acme feeling which he In unable to resist.
"&en you retire you will select one of your number as foreenp.
Lot your verdict be signed by him."
/s/ Tam J. Coleman, Jr.,
Judge Preaiding"
"N4, the Jury, answer the Special Issues contained In the Charge of the
Court in the above entitled and numbered cause as follows
No. lu She was under duress
No. V She was acting under duress
No. 3s We do 0
No. bra We do
go. 5s We do
go. 6s It was the result of undue influence."
/s/ Paul J. Moods
Foreman'
rbiah findings were received by the Court and were filed and entered of
record an the minutes of such court,
i JPGN, the plaintiffs having made, and the Court having duly
heard and considered, a motion for dudgment, and such Add' Laoal considerations
and findings as wen authorized by law having been had and adds,
And the Court being of the opinion that judgment should be rendered
as 611ori ibr the plaintiffs,
It is, therefore, OBDF.BBD, ADJUDGED AND LBCSETD by the Court that the
plaintiffs, The State of Texas, in its own accord and on relation of Marjorie
s. Burkhalter, and Marjorie S. Burkhalter, individually, do have and recover
judgment of and from the defendants above named, in the capacities as named in
this wit, in all things vacating, cancelling and nullity3ag the orders of the
Commissioners Court of Brasoe County, Tons, accepting or purporting to accept
the resignation of Mrs. Marjorie S. Burkhalter from the office of Branco Canty
Tax Assessor-Collector, as same appears of record In Volume L, Page 121, of the
Minutes of the Commissioners Court of Brazos County, Te=ej for cancellation,
vacation and nullification of the resignation as tendered by Mrs. Marjorie S.
kkkurkhalterj and for cancellation, vacation and nullification of any order or
orders appointing Monroe Bond or Monroe G. Bond, as Brazos Cwnty Tat Assessor-
Collector to succeed Mrs. lfarjorie S. Burkhalter and
, any purported 4halifiaatlnd
of said Monroe Bond for said office, all ab initio.
It is further OBDBRBD, ADJUDGED AND DECBEBD by the Court that The State
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' of Texas, in its own accord and on relation of Mrs. Marjorie S. Burkhalter, de have
and recover judgement that the defendant, Monroe Bond, or Monroe 0. Baal, be adjudged
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guilty as charged in plaintiffs' Second Amended Original Petition, and that said
defendant, Monroe Bond, or Monroe G. Bond, being one and the same person, be, and
he is hereby ousted and removed
frcmthe office of Tat Assessor-Collector of Brazos
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October 29. 1957.
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County, Texas, and that the relator, Mrs. Marjorie S. Burkhalter is hereby
inducted and restored to said office as Tax Assessor-Collector of Orrice Coundy, Tors,
together with all lawful franchises, privileges and emoluments which said office
posseases, from July 29, 1957, without interruption, and that this judgnmt of
induction and restoration to office be executed and made effective as the law directs,
all necessary process and writs to be issued to male this judgment effective.
It is farther ordered, adjudged and decreed by the Court that Mrs.
Marjorie S. Burkhalter, do have and recover of the defendant, Brazos County,
Texas, judgment for any and all salary accrued since July 299 1957, said salary
to be paid as provided by law for the payment of county officials.
It is farther ordered, adjudged and decreed by the Court that plalhtiff,
Mrs. Marjorie E. Burkhalter, fully qualify herself as the law directs by executing
and delivering the legally required bands as Tax Assessor-Collector, upon bar
resumption of action and duty in her said office.
~.J It is farther ordered, adjudged and decreed by the Court that any and
fry all additional relief and prayer, not specifically mentioned heroin, and as requested
s-, and prayed for by any party, be and the same is hereby, denied and overruled.
It is further ordered that Mrs. Marjorie S. Burkhalter do he" and recover
of and from the defendants any and all costs expended in this action, for which she
nay have her execution, or as the law directs for the collection of same.
DATED AND SIGNED this 22nd day of October, 1957.
/a/ Tom F. Coleman. Jr..
DISTRICT JUDGE, 151ST DISTRICT
t COURT, PRESIDING.
THE STATE OF TEIAS 0 IN THE DISTRICT COURT OF
COUNTY OF BRAZOS 8 SUM MUM, T E X A S
I, F. T. Cole, Clerk of the District Court of Brazos County, Taurus, do
hereby certify that the above and foregoing is a true and correct copy of Judgment
as the same appears of record in Volrase V, Pages 24, 25, and 26 of the Civil Mirmtes
of the District Court of Brazos County, Texas.
WITNESS MZ HAND AND SEAL OF SAID COURT at office In Bryan, Brazos County,
Texas, this the 28th day of October, A. D. 1957.
/a/ F. T. Is
F. T. COLE
Clerk of the District Court
Brazos County, Tetras."
After extended discussion of all factors involved including the legal questions and
possibilities of reversal by the higher courts, a motion was made and daly seconded that the
defendants do not appeal from the judgment of the District Court, as hersinabove show. This
motion was adopted by a vote of four to one, with County Judge Ware voting *now.
In accordance with the foregoing action and upon motion duly seconded and mranlacasly
adopted, the Court fixed the new surety bands rh ich are to be given by llrs. Marjorie Be B&kh&tter
as Tax Assessor-Collector of Brazos County, Texas, as follower
For State taxes in accordance with provisions
of Article 7247, of the Revised Civil Statutes of Texas. . . .;7,000.00
For County taxes in accordance with provisions
of Article 7249, of the Revised Civil Statutes of Texas. . . j24,000.00.
Mr. A. S. Mo9wain of Bryan, as local agent fbr the Columbia Casualty Company, appeared
before the Court and presented forms for bonds In accordance with the foregoing and stated the
would be sent to Houston for exscation by the surety company and returned to hla by Thursday,
October 91, 1957.
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lmerupen the Court recessed to 'set again at 2100 o'clock p. a., on U msd,y,
October 31, 1957.
RSMSED K1iRM13 on October 91. 19571
Pammt to reason taken on October 29, 19579 the CamdSaLcoerel Court of
Bravos County, Texas, not at 2100 p. a., on lhursdsy, October 31, 1957, kith the folloldng
presents
A. S. Whre, County Judge, presiding]
Raymond A. No1ao, Commissioner of Precinct 11
George Damn, Commissioner of Precinct 21
Clyde J. Rorterfield, Commissioner of Precinct 3i
Newton Burlin, Commissioner of rrecinat 4;
wdth Mrs. L. P. Newton, Deputy Clerk of the Court Court, acting as recorder, bee=&@ of
the absence of Canty Clerk A. B. Syptak, on account of the illness of his son.
Mrs. Marjorie Z. Burkhalter appeared befcre the Court and presented bar official
bonds " Tax Assessor-Collector of Brazos County, Teas, dated October 29, 1957, executed
by the Col- I& Casualty Company of New York, with general offices in Houston, Texas, and
Mr. A. S. XcSmdn, of Bryan, as local agent. The bonds were examined and tbund to be for
a7,0OD.00 to the State of Texas to cover State taxies in accordance with Article 7247, of
the Revised Civil Statutes of Texas, and for $22,000.00 to the County In accordance with
the provisions of Article 7249, ibid. On motion, duly seconded and unanimously adopted,
the said two bonds were approved in open court and ordered recorded, and the official oath
of office administered to Kra. Burkhalter.
On motion, duly seconded and unanimously adopted, the Court voted to allocate
to the tax office for November and December, the balance of the present year, the son
of $3,366.64, to be spent on salaries an budgeted.
Whereupon the Court adjourned.
The foregoing minutes, beginning an Page 1380 and concluded above, were ermined
and approved in open Court on this the 12th daffy of November, A. D.11957.. )
. lfers) ( clam)
County Judge. eiomr of Precinct 1.
(Clyde J. Porterfield)
Commissl rot Precinct 2. Commissioner of Precinct 3-
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i~ ~ Commissioner of Precinct 4.
(j(A. 'B: 9ptakf J'
County Clerk.'
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