Untitled Texas Attorney General Opinion ( 1988 )

July 5, 1988
Honorable Jerry Cobb Opinion No. JM-929
Criminal District Attorney
5th Floor Carroll Courts Bldg. Re: Eligibility of certain
P. 0. BOX 2344 former district judges for
Denton, Texas 76201-2899 assignment (RQ-1429)
Dear Mr. Cobb:
YOU ask about the eligibility of certain former
district judges to sit by special assignment. The presiding
judge of an administrative judicial region is authorized to
assign judges to try cases and dispose of accumulated
business. Gov't Code § 74.056(a). Section 74.054 of the
Government Code sets out the judges who are eligible for
.Y-. assignment by the presiding judge. Eligible judges include
a former district judge or retired or former
statutory county court judge who certifies to
the presiding judge a willingness to serve
and to comply with the prohibitions relating
to the practice of law imposed on a retired
judge by Section 44.005, Title llOB, Revised
Statutes, and who is on the list maintained
by the presiding judge as required by this
chapter.
Gov't Code 5 74.054(a)(3).
Your specific question is about section 74.055 of the
Government Code, which requires the presiding judge to keep
a list of judges subject to assignment and sets out
qualifications for judges who are eligible to sit by
assignment. One of the necessary qualifications is that the
judge have served as a judge for at least four years in a
district, statutory, or appellate court. You ask about the
interpretation of an exception to that four-year requirement
enacted by the 70th Legislature. Before we address your
specific question, however, it is necessary to review the
statutory history of section 74.055 in order to clarify what
version of section 74.055 is to be given effect.
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Honorable Jerry Cobb - Page 2 (JM-929)
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The statutes permitting the presiding judge of an
administrative judicial region to make special assignments
were enacted in 1985 as part of the Court Administration
Act. Acts 1985, 69th Leg., ch. 732, § 2, at 2534. The
Court Administration Act was initially codified as article
200a-1, V.T.C.S. The provisions that are now in section
74.055 of the Government Code were originally enacted as
section 4.015 of article 200a-1.
Three bills enacted by the 70th Legislature purported
to affect section 4.015 of article 200a-1. One of those was
an omnibus bill conforming the Judicial Title of the
Government Code to changes in the law and nonsubstantively
recodifying certain statutes, including article 200a-1.
Acts 1987, 70th Leg., ch. 148, at 534 (effective September
1, 1987) (hereinafter "Chapter 148"): see id. 5 5.01(a)
(stating that Chapter 148 is a nonsubstantive codification).
Chapter 148 repealed article 200a-1 in its entirety and
recodified the substance of section 4.015 of article 200a-1
as section 74.055 of the Government Code.
A second bill also reenacted section 4.015 of article
200a-1 as section 74.055 of the Government Code. Acts 1987,
70th Leg., ch. 674, 5 2.10, at 2507 (hereinafter "Chapter
674") (section 2.10 effective September 1, 1987). The
reenactment of section 4.015 was, however, substantive. It
added statutory county court judges to the judges eligible
to sit by special assignment. Thus, the version.of section
74.055 enacted by Chapter 148 is different from the version
enacted by Chapter 674. Section 5.01(d) of Chapter 148
provides that any statute enacted by the 70th Legislature
that conflicts with a provision of Chapter 148 prevails over
the Chapter 148 provision. Therefore, section 74.055 as
enacted by Chapter 674 prevails over section 74.055 as
enacted by Chapter 148.
Chapter 674, like Chapter 148, contained a provision
specifically repealing section 4.015 of article 200a-1. Id.
5 2.14 (effective September 1, 1987). Nonetheless, a third
bill purported to amend section 4.015 of article 200a-1 by
adding subsection (d) to read as follows:
A former district judge who has served as
judge of more than one district court is not
required to meet the four years of service
requirement in Subsection (c)(l) to be
eligible to be named on the list.
Acts 1987, 70th Leg., ch. 516, at 2128 (effective August 31,
1987)(hereinafter "Chapter 516"). There is no reference in
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Honorable Jerry Cobb - Page 3 (JM-929)
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Chapter 516 to the recodification of section 4.015 of
article 200a-1; Chapter 516 refers only to section 4.015 of
article 200a-1. Because Chapter 674 expressly repeals
section 4.015 of article 200a-1 while Chapter 516 amends it,
there appears to be a conflict between those two enactments.
Chapters 674 and 516 can, however, be easily harmon-
ized. Gov't Code 5 311.025(b) (providing that amendments to
same statute enacted at same session should be harmonized).
Chapter 674 did not eliminate the substance of section
4.015. It moved it to section 74.055 of the Government
Code, and in doing so, added a category of judges eligible
to sit by special assignment. Chapter 516 made another
addition to the substance of section 4.015. Those
amendments are not inconsistent in substance. The only
inconsistency is one of statutory reference. Thus, the
provision added by Chapter 516 should be given effect as
part of section 74.055 of the Government Code, as enacted.in
Chapter 674.1
Your specific question is about the interpretation of
the provision added to section 74.055 by Chapter 516. That
provision makes an exception to the requirement that a judge
must have four years of judicial experience to sit by
assignment. The exception is for a "former district judge
who has served as judge of more than one district court."
You suggest that there are two possible interpretations of
that language. You suggest that the exception could apply
to a judge who has been elected or appointed to more than
one district court judgeship or that it could apply to a
judge who has exchanged benches or districts pursuant to
section 24.303 of the Government Code. Section 24.303
allows judges in counties in which there are two or more
district courts to exchange benches or districts from time
to time.
1. A recent decision of the Texas Supreme Court presents
a much more complex issue of statutory construction
involving section 74.503 of the Government Code, which was
the subject of several different enactments of the 70th
Legislature. State v. Preslar, 31 Tex. Sup. Ct. J. 353
(April 27, 1988). The four concurring opinions in Preslar
underscore the difficulty of harmonizing conflicting
statutes adopted by the same session of the legislature.
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Honorable Jerry Cobb - Page 4 (JM-929)
The tape recordings of a hearing before the House
Committee on Judicial Affairs make clear that Chapter 516
was enacted to allow one person, a judge in Galveston
County, to sit by special assignment. Hearing on H.B. 636
before the House Comm. on Judicial Affairs 70th Leg. (March
11, 1987). The judge was appointed by Governor Briscoe to
fill a vacancy in a district judgeship. He was then
defeated in the subsequent election to fill the judgeship.
Subsequently Governor Clements appointed him to fill a
vacancy in a different district court. He chose not to run
when the term expired. His total service was less than four
years. Representative Hury stated in the committee meeting
that it would be unlikely that anyone other than that one
judge would meet the narrow criteria set out by Chapter 516.
If every judge who ever exchanged a bench were eligible,
given how common this practice is, the exception would
swallow the rule. Therefore, it is clear that the
legislature intended Chapter 516 to apply only to a judge
who had been elected or appointed to more than one district
judgeship. The legislature did not intend to allow any
district judge who has exchanged benches pursuant to section
24.303 of the Government Code to be exempted from the
requirement that a judge must have four years of judicial
service to sit by special assignment. .-
SUMMARY
Acts 1987, 70th Legislature, chaper 516,
page 2128, adds an exception to the reguire-
ment that a judge must have four years of
judicial experience to sit special
assignment. Gov't Code 5 74":55. The.
exception is for a "former district judge who
has served as judge of more than one district
court," and it applies only to a judge who
has been elected or appointed to more than
one district court. It does not apply to
district judges who have exchanged benches
pursuant to section 24.303 of the Government
Code.
Very truly yo s
c
LJ-M"te;A
JIM MATTOX
Attorney General of Texas
MARY KELLER -.
First Assistant Attorney General
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LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAK-Y
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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