Untitled Texas Attorney General Opinion ( 1973 )

October 25, 1973
The Honorable Dolph Briscoe Opinion No. H- 134
Governor of Texas
State Capitol Re: Governor’s apppointive
Austin, Texas power under $ $4 and 5
of Senate Bill 52, 63rd
Legislature, creating
Dear Governor Briscoe: new judicial districts
You hatie asked this office for an opinion concer~ning your appointive
powers under certain new judicial districts created by Senate Bill 52 of
the 63rd Legislature, (Acts 1973, 63rd Leg., ch. 316, p. 731).
You have referred us to Sections 4 and 5 of the bill, which amend
Article 199a, Vernon’s Texas Civil Statutes:
Sec. 4. ‘I ’ [Article 199a, Vernon’s Texas
Civil Statutes], is amended by adding Sections
3. 041-3. 042 to read as follows:
‘Sec. 3. 041. The 213th Judicial District,
composed of the County of Tarrant, is hereby created.
‘Sec. 3. 042. (a) The 214th Judicial District,
composed of the County of Nueces, is hereby created.
‘(b) The 214th District Court shall give prefer-
ence to criminal cases. ’
Sec. 5. ” ’ [Article 199a, Vernon’s Texas
Civil Statutes], is amended by adding Section 3. 043
to read as follows:
‘I ’ Sec. 3. 043. (a) The 215th Judicial District,
composed of Harris County, is created.
p. 645
. -
The Honorable Dolph Briscoe, page 2 (H-134)
” ’ (b) The 215th District Court shall give
preference to civil matters. ’”
“Sec. 7 . . . .
“(c) The provisions of Section 4 of this Act
take effect January 1, 1975.
“(d) The provisions of Section 5 of this Act
take effect January 20, 1975. ”
Your letter states:
“I respectfully request an offitiial legal
opinion of your Office as to whether I have any
appointive power in connection with appointment of
judges to these courts and, if so, when is the proper
time to make these appointments? ”
Article 5, 5 28, of the Texas Constitution provides in part: “Vacancies ,’
in the office of Judges of the Supreme Court, the Court of Criminal Appeals,
the Court of Civil Appeals, and Dist?ict’Courts’ shall be filled by the Gov-
ernor until the next succeeding General Election. . . . ”
Section 2. 005 of Article 199a, V. T. C. S. , provides:
“The di,strict judge of each new district
created by this Act shall be appointed by the governor
in the manner prescribed by the constitution and laws
of the State of Texas and shall serve in such capacity
until the next succeeding general election and until his
successor has been duly elected and has qualified. ”
We believe that the Legislature has manifested a clear and unambiguous
intention that the judicial offices established in the above quoted provisions
shall not become effective until January 1, 1975, and January 20, 1975, respect-
ively. Postponing the effective date of this legislation was clearly within the
p. 646
. -
The Honorable Dolph Briscoe, page 3 (H-134)
province and power of the Legislature. Norton v. Kleberg County,231
S. W. 2d 716 (Tex. 1950); Rudco Oil & Gas Company v. LeMasters, 146
S.W. 2d 806 (Tex. Civ.App. , Esstland ,. 1940, error dism’d. jud car. ).
No vacancy could~possibly occur in these officesuntil they become
effective; and thus, they cannot be filled by the general election in 1974.
It will be the authority and the duty of the Governor to make appointments
to fill these offices when they become effective on January 1, 1975, and
January 20, 1975, respectively, and to continue until the next general
election, presumably in 1976.
Concerning the proper time for making such appointments, pro-
spective appointments to these judicial offices can be announced, but
they cannot be effectively made until the offices exist, which will occur
at the time these office become effective on January 1 and..January 20, 1975,
respectively. Accordingly, your official appointments cannot be made until
that time.
. SUMMARY
The judicial offices created by Section 4 of
Senate Bill 52, 63rd Legislature, and made effective
on January 1, 1975, and the judicial office created by
Section 5 of Senate Bill 52, 63rd Legislature, and
made effective on January 20, 1975, should be filled
by appointment by the Governor, which appointment
would only be effective at the time of the above-stated
effective date of the offices.
Attorney General of Texas
Opinion Committee
.-
p. 647