Carlos Razos et al., Plaintiffs-appellants, v. Emma Drusina et al., Defendants-appellees, 440 F.2d 795 (5th Cir. 1971)

Razos appeals from the District Court's dismissal of his complaint, in which he sought the empanelling of a three-judge court to determine the constitutionality of Texas Rules of Civil Procedure 746, 749, and 750. Here he asserts that Rules 749 and 750, which require an appeal bond in forcible entry and detainer cases and prescribe the form to be used in filing such a bond, violate the equal protection clause of the fourteenth amendment. Thus he argues that a three-judge court should have been convened to decide whether enforcement of these rules should be enjoined. See 28 U.S.C.A. §§ 2281, 2284.

While section 2281 is not a measure of broad social policy, we are convinced that the statute is expansive enough in scope to encompass the situation here. The Texas Rules of Civil Procedure, promulgated by the state supreme court but subject to legislative veto, have the force and effect of statutes, especially when they repeal prior legislative enactments. See Callahan v. Stover, Tex.Civ.App. 1953, 263 S.W.2d 630; cf. Sibbach v. Wilson, 1941, 312 U.S. 1, 14-16, 61 S. Ct. 422, 85 L. Ed. 479. See also Gilmore v. Lynch, 9 Cir. 1968, 400 F.2d 228, 230. Without reaching the merits of this controversy, we conclude that the District Judge's refusal to request a three-judge court was erroneous. E. g., Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320, 322-324.

Reversed and remanded.