Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
January 29, 1981
MARK WHITE
Attorney General
Honorable Lynn Nabers, Chairman Opinion No. &W-293
Committee on Criminal Jurisprudence
House of Representatives Re: May legislature create panels
P. 0. Box 2910 within the 14 courts of appeak
Austin, Texas 78769 which would be charged solely with
criminal jurisdiction
Dear Representative Nabers:
You have requested our opinion regarding legislative implementation
of the recent amendment to article V, section 6 of the Texas Constitution,
adopted by the voters on November 4, 1980. That provision now states, in
pertinent part:
The Legislature shall divide the State into such
Supreme judicial districts as the population and
business may require, and shall establish a Court of
Appeals in each of said districts, which shall consist
of a Chief Justice and at least two Associate
Justices, who shall have the qualifications as herein
prescribed for Justices of the Supreme Court. The
Court of Appeak may sit in sections as authorized by
law. The concurrence of a majority of the judges
sitting in a section is necessary to decide a case.
Said Court of Appeals shall have appellate juris-
diction co-extensive with the limits of their
respective districts, which shall extend to all cases of
which the District Courts or County Courts have
original or appellate jurisdiction, under such restric-
tions and regulations as may be prescribed by law.
You ask whether the legislature may create, within the courts of appeals,
panels which are charged solely with criminal jurisdiction.
The various courts of appeals, formerly the courts of civil appeals,
have been constitutionally authorized to “sit in sections” or panels since the
1978 amendment to article V, section 6. Article 1812, V.T.C.S., made
provision for courts of the first, second, fifth and fourteenth judicial
districts to sit in panels of not lass than three justices. The 1980 amendment
does not affect this authority to sit in sections, but it adds criminal cases
p. 935
Honorable Lynn Nabers - Page Two (M+293)
appealed from the county and district courts to the jurisdiction of each court of
appeals. Since the amendment grants to the courts of appeals “appellate jurisdiction
co-extensive with the limits of their respective districts, which shall extend to 811
cases of which the District Courts or County Courts have original or appellate
jurisdiction,” it might be argued that each section must be accorded all the jurisdiction
embodied in the court of appeals of which it is a part. (Emphasis added). The
amendment, however, grants such jurisdiction “under such restrictions and regulations
as may be prescribed by law. ” Furthermore, the amendment permits a court of appeals
to sit in sections only “as authorized by law.”
In Harbison v. McMurry, 158 S.W.2d 284, 287 (Tex. 19421, the supreme court
declared:
. . . the appellate jurisdiction of the (clourts of [cl ivil
[alppaak in ‘civil cases’ is not unlimited or absolute, but is
subject to control by the Legislature. This must be so because
it is provided that such jurisdiction is ‘under such restrictions
and regulations as may be prescribed by law.’
In our opinion, the legislature is authorized to impose restrictions upon the broad
grant of jurisdiction to the court of appeals, and to any of the sections created by
statute in accordance with the amendment. We conclude, therefore, that the
legislature may create, within the various courts of appeals, panels which are charged
solely with criminal jurisdiction.
SUMMARY
Under the recent amendment to article V, section 6 of the
Texas Constitution, the legislature is empowered to create,
within the various courts of appeals, panels which arc? charged
solely with criminal jurisdiction.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
p. 936
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Honorable Lynn Nabers - Page Three (m-293)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Gerald C. Carruth
Rick Gilpln
Bruce Youngblood
p. 937