Sunday, October 22, 2000

Of Book & Bench
Judge’s rulings draw upon library
By Bill Whitaker
Reporter-News Staff Writer

When the books, papers and courtroom journals of retired Texas Supreme Court Chief Justice Andrew Jackson “Jack” Pope are at last shelved and snug in place at Abilene Christian University Library, scholars won’t find the typical law library at their disposal.

Instead they’ll have access to the wide-ranging, historically grounded reasoning behind some of the state’s most pivotal legal decisions.

That means plenty of books on legal history, sociology and customs in Texas’ colorful past, beginning when it was held by the Spanish, and back even further to Roman times, which continue to influence many of today’s courts worldwide.

But most of all, scholars will discover the 87-year-old retired judge has a passion for books. No wonder he and his wife Allene were recently honored — and for the second time — as “Friends of ACU Library.”

“My wife and I are both readers,” the polite but outspoken jurist says. “And I read incessantly. I’ve always thought a lawyer who can’t talk about anything but cases is one of the most boring people you can know.”

No one can accuse the peppery, physically fit, Austin-based judge of being boring. Opinions about life, law and lore come freely following a solid judicial career that began with Pope’s appointment to a district judgeship by Texas Gov. Coke Stevenson in 1946.

“Most people in my profession are very adept as to what the law is,” Pope says. “But to really understand our valuable legal principles, you have to go back into history to see how we came up with the First Amendment, the Fifth Amendment. Whose idea was the separation of powers?

“How did we come up with our system of checks and balances? And, too, what about the separation of church and state? That happened in the minds of Madison and Jefferson. There are all these interesting ideas behind the laws and principles we now take for granted.”

An Abilene native who graduated from Abilene High School in 1930 and from ACU in 1934, Pope earned his law degree at the University of Texas in Austin in 1937. But the judge insists he received some of his best legal training in Abilene.

“I felt like the classical education I got at Abilene Christian prepared me as an appellate judge — not particularly as a trial judge, but definitely as an appellate judge,” he says. “And that’s why Allene and I want the body of our library resources to go to this institution.”

Future headaches

Gathered bit by bit through his career, Pope’s library helped him make such decisions as Texas vs. Valmont Plantations, in which he ruled that Rio Grande Valley ranchers’ claim on water running through their property derived from “mythic misinterpretations” of Spanish customs.

The judge decided that unless those property owners could actually produce a Spanish deed that granted those rights years before, the water of the Rio Grande was not necessarily theirs simply because it ran past their land.

While this decision played a key role in the state’s evolving system of regulating surface water — and thus, conserving Texas’ most valuable resource — the retired judge suspects further battles over water lay just beyond the bend.

“Today we have a serious problem about water but it’s underground water,” he says. “It’s a terrible problem. So many cities are dependent on ground water and nothing is being done about it. There’s no study going on about the problem, no committee really looking into it.

“There are areas of Texas that could be reduced to wasteland because of exhaustion of underground water that takes thousands of years to replace.”

His other pivotal opinion — Eggemeyer vs. Eggemeyer, which forbids the division of any property in a divorce case that one owned before marriage — is also grounded in the past, specifically the Texas Constitution and its adaptation of the old Spanish system of handling property.

“You know, back around 1860 or so, there began three or four generations of lawyers who just turned their backs on Spanish law,” Pope laments. “Fortunately, knowledge of our Spanish background has undergone a renaissance and major law schools today are teaching it.”

Two more mouths

For all his years as an appellate judge — culminating in his controversial 1982 appointment as chief justice of the Texas Supreme Court — Pope says some of his most memorable years were those as a trial judge.

“It’s on the trial bench you have the most fun and the most turmoil,” he says. “You’re seeing life in its most rugged form. You’re dealing with blood and bone. The nitty-gritty, good and bad, the humor and humanity of what goes on in life — it all comes to the courthouse.

“Sooner or later, everybody comes to the courthouse.”

The worst cases involved child custody “in which every alternative you looked at was a failure, and yet you had to decide on this person or that person,” he says. “Those are the toughest cases — the ones involving young lives where there is no family fit to have them.”

He recalls one case in which a single mother had abandoned her two young daughters and the grandparents declined to take custody of the girls unless the court paid them. With state child welfare officials unable to accommodate the children, the judge found his alternatives limited.

So Pope called his wife, told her to put out a couple of extra plates at dinner, then took the little girls home with him till state officials could finally find a suitable home for them.

“Those are the kind of cases,” he says, shaking his head, “where you just want to get out of the courthouse and go walking.”

Contact associate editor Bill Whitaker at 676-6732 or whitakerb@abinews.com.