Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
Ikty 14. 1985
JIM MATTOX
Attorney General
Supreme Court Bullding Honorable Henry WaLe Opinion No. m-318
P. 0. Box 1254a Criminal District Attorney
Aurlin.Tx. 18711-2548 Dallas County Servj.c.es Building He: Disposition of appeals from
51214752cm Condemnation Sectic,m, from justice of the peace courts
Tolox 010/87C1367
Dallas, Texas. 751,Cs2 under article 1970-31.2. V.T.C.S.
Tdeco9ler 512l47502S6
Dear Mr. Wade:
714 Jackson. Suite 700
Dallas. TX. 752024SOe You inform us that a problem is presented In the construction of
2w742aw4
section 2, of article 1970-31.2, V.T.C.S.. as to vhat procedure the
county clerk is to employ in filing cases appealed from the justice of
4824 Albam Ave.. Suite 180 the peace courts to the several county courts at law. You also inform
El Paso. TX. 799052793 us that the Dallar, County Clerk is presently filing these appealed
915633-34s4 cases "as they come! in" rather than "in rotation." In that regard you
ask:
1001 Texas. SuiW 700
Houslon, TX. 77002.3111 [Wlhethex section 2 of article 1970-31.2,
713223688K V.T.C.S.,, requires the county clerks to set vp a
special procedure to process and file 'appealed
cases' 4IEi a separate category of cases (like
9W Broadway. Suite 312
Lubbock, TX. 79401-3479
eminent domain proceedings), or vhether the county
K&747-5238 clerk nu;y treat 'appealed cases' in the same
manner all the case filed under section 31
43W N. Tenth. SuiCe B We conclude that article 1970-31.2, section 2. V.T.C.S.. does not
McAllen. TX. 78501.1886
512N2-4547
require the Dallas County Clerk to establish a separate procedure. We
believe that the countv clerk Is required to treat these appealed
cases in the same winner as other caaea filed under article 1976-31.2.
200 Main Plaza, Suits 4OQ section 3, V.T.C.S.
San Antonio, TX. 782052797
512/225-4191
Article 1970-:Il..2. section 2 provides in part:
Sec. il. All civil cases appealed from the
several jwtlce courts of Dallas County shall be
filed by the county clerk in the several count1
courts o? Dallas County at law consecutively as
the appe,;Led cases are received by the clerk from
the se&al justices of the peace in the
county. , . . (Emphasis added).
It is our dc,ty in construing statutes to give effect to the
legislative intent and purpose. Patterson v. City of Dallas, 355
p. 1454
Ronorable Renry Wade - Pnge 2 (JX-318)
S.W.Zd 838 (Tex. Civ. APP. - Dallas 1962, writ ref’d n.r.e.); 53 Tex.
Jur. 2d Statutes 5125 (1964). In addition, we are only at liberty to
turn to other aids of constmction when the true intent of the statute
may not be ascertained on its face. See Trinity Independent School
District v. Walker County, 287 S.W.Zd 7y(Tex. Civ. App. - Galveston
1956, no writ). It is clear that article 1970-31.2, section 2.
V.T.C.S., is mandatory bec6llse it presents circumstances by which a
public officer shall perfo,no his statutory duty. See State v. Pox.
133 S.W.2d 987 (Tex. Clv. App. - Austin 1939, writ ref’d); Sutherland,
Statutory Construction, V.;:P., 157.14 (4th ed. 1984). Therefore, the
county clerk Is required to file the appealed cases in the manner
declared in article 1970-3L.2, section 2. V.T.C.S. The ambiguity in
the statute arises when riection 2 is compared with’ section 3 of
article 1970-31.2, V.T.C.S.
Section 2, as quoted above, uses the term "consecutively" to
describe the method by whlt,h, the county clerk is to file the appealed
cases in the several county courts at law. V.T.C.S. art. 1970-31.2.
12. In contrast, section 3. which contains a provision relating to
the filing of cases lo general, provides that "each case so filed
shall be filed in rotation in each of the county courts of Dallas
County at law. . . .I’ V.‘I’.C.S. art. 1970-31.2, 13. Thus, when the
legislature used the term “consecutively” in section 2. and the term
"in rotation" in section 3. it arguably intended to prescribe two
methods by which the county clerk is to file cases in county court.
We believe, however, that the dominant intent and .purpose of the
legislature in enacting article 1970-31.2 was to ensure (whell court
number 5 was created) that: each of the five county courts at law be
assigned an equal number of cases filed with the county clerk.
Section 3 also provida!s for the transfer of “any” case pending in
the docket of the five count:y courts at law. V.T.C.S. art. 1970-31.2.
13. Those cases appealed from the justices of the peace may be
included in this transfer along with all cases properly within the
jurisdiction of the courts; and pending on the docket at the time of
the transfer. See generaIll, Attorney General Opinion JM-237 (1984)
(discussion of the jurisdiction of the courts at law in Dallas
county). The legislature '~8s made an exception in the case where the
judge of any one of the: county courts has granted a writ of
certiorari. See V.T.C.S. art. 1970-31.2, $§2, 3. To conclude that
the legislaturedid not intend to provide for the equalization of the
dockets would render thie portion of section 3 useless. Thus, we
construe the filing requi~rement in section 2 to provide for the
equalization in the dockeMng of appealed cases filed in the several
county Courts at law from the justices of the peace.
As indicated above, the use of the word "consecutively" in
section 2 and the phrase "in rotation" in section 3 describe the
manner by which cases are co be filed in the county court. When the
legislative purpose is ascertained. the significance of words used may
p. 1455
Honorable llenry Wade - Pogf: 3 (Jn-318)
be restricted or enlarged in order to effectuate the 1egisLative
purpose and meaning. See
-- West Texas Utilities Co. v. City of Mason,
229 S.W.2d 404 (Tex. Civ. Pgp. - Austin). aff’d, 237 S.W.2d 273 (Tex.
1951). The word “consecutively” was firstused by the leaislature in
1963 to describe the manuer in.which cases appealed from the justice’s
courts to the county courl:s at law in Dallas county should be filed.
See V.T.C.S. art. 197o-:I:L. 1’ 12. Article 1970-31.1, section 2,
i7T.c.s.. provided in part:
[A]11 civil cases appealed froo the several
Justice Courts 80:f Dallas County shall be by the
County Clerk filed in the several County Courts of
Dallas County at Law coosecutivelo as said
appealed cases are received. . . . (Emphasis
added).
This language impliedly repealed the language used by the legislature
in article 1970-16. Article 1970-16. V.T.C.S., was enacted in 1917
and used the term “alterna~tively” rather than “consecutively” because
only two county courts at law existed at that time in Dallas County.
Accordingly, we believe ttat when the legislature created court number
5, the term “consecutively” was used because it was a more appropriate
term than ‘alternatively” when describing how cases are to be filed in
five courts rather than tvo courts.
“Consecutively” is i.efined by Black’s Law Dictiocary (5th ed.
1979) a$ “Successive, succeeding one another in regular order.” The
tern “rotate” is defined Fn Webster’s dictionary as “to perform an
act. function, or operatj,cn in turn [or] to pass or clternate in a
series.” Webster’s h’intt, New Colle8iate Dictionary (9th ed. 19813.
If we construe the languz;;e of section 2 as you suggest, the county
clerk would be permitted to reasonably file cases in a particular
county court at law so long as each case received was filed one after
the other in any one of the courts. We believe that this construction
is not inconsistent with the legisl.ative intent to maintain equal
dockets in all courts.
Section 2 should be read together with section 3 in order to give
effect to the legislative intact. Secticn 3 further provides:
sec. 3. The County Court of Dallas County at
Law No. 5 shal:. be known as the ‘E’ Court. The
county clerk shall number consecutively all casts
filed in the county courts of Dallas County at law
affixing immediately tollowicc the number of all
cases the letter A, B. C. D. cr E, according to
which county court of Dallas Count: at law the
case is assigned. and each case SC filed shall be
filed in rot,-.ci~ in each of the count: courts of
Dallas County :,t - law wlch the letter
-- designation
p. 1456
Honorable Henry Wedc - Pagal 4 (X+318)
being used to denote the court in which the CJSC
is filad. . . . I:Emphasis added).
V.T.C.S. art, 1970-31.2, I:)* This provision require8 the county clerk
to perform two mandatory duties, First, the county clerk is to number
“all” cases filed. and tL: provision also requires the clerk to file
those numbered cases “in rotation.” Section 3, does not exclude from
these two requirements cases filed with the county clerk which have
been appealed from the justices of the peace. Accordingly, we
conclude that the requiremmt of section 2 is limited by section 3 and
that the county clerk is mquired to file all the cases appealed from
the justices of the peace consecutively, along with the other cases
filed, and to assign each case to the several,county courts at law in
rotation. along with the ,,ther cases filed. The only cases excepted
from this filing requirement are eminent domain cases. See Property
Code 521.013(d) (clerk is to assign an equal number of emxnt domain
cases “in rotation”).
SUMMARY
Article 1970-:31.2. section 2, V.T.C.S.. does
not require the Dallas County Clerk to establish a
separate procedt.re to file appealed cases from the
justices of tte peace court. The county clerk is
required to trer.t these appealed cases in the same
manner as other cases filed under article
197.0-31.2, sectj.on 3, Y.T.C.S.
Very truly you ,
I
u-1 b
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICURDS
Executive Assistant Attorxy General
RO6ERTGRAY
Special Assistant htcorney General
RICK GILPIN
Chaimnn, Opinion Comicce?
Prepared by Tony Guillory
Assistant Attorney General
p. 1457
Hmorable Hcnr; Wade - Page 5 (X3-318)
APPROVED:
OPINIOA COMNITTEE
Rick Gilpin. Chairman
Jon Bible
Colin Cerl
Susan Garrison
'Ion)- Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
p. 1458