Untitled Texas Attorney General Opinion ( 1957 )

Honorable Joe L. Cox Opinion No. WW-197
District Attorney
64th Judicial District Re: Effective date of H;B.
Hale County Courthouse 438, 55th Legislature,
Plainview, Texas concerning the reor-
ganization of the 64th
Judicial District, and
creating the 154th
Dear Mr. Cox: Judicial District.
You have requested an opinion as to the effec-
tive date of House Bill No. 438, page 1476, Acts
1957, 55th Legislature, Regular Session.
House Bill No. 438 in effect amends subdlvisjon
64 of Article 199, Vernon's Civil Statutes, so as to
create an additional judicial district, the 154th;
out of the six counties now composing the 64th Judi-
cial District. Under the law now in effect (Acts
1947, 50th Legislature), the 64th Judicial District
is composed of the Counties of Hale, Lamb, Swisher,
Baile Parmer and Castro. Under House Bill No. 438,
the 6%'
th Judicial District will be composed of Hale,
Swisher, and Castro Counties; the 154th Judicial
District will be composed of Lamb, Bailey and Parmer
Counties. House Bill No. 438 also provides that the
present judge of the 64th District Court will become
the judge of the new 154th District Court; while the
district attorney of the 64th Judicial District will
remain as the district attorney of the 64th Judicial
District. The Gover..,r*will appoint a judge for the
64th District Court, and a district attorney for the
new 154th Judicial District.
Section 12 of House Bill No. 438 states:
"The effective date of this Act shall
be September 1, 1957."
From the brief submitted by you, it appears
that the facts involved are stated in the three
following paragraphs:
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Hon. Joe L. Cox, Page 2 (ww-197)
If House Bill No. 438 should become effective on
September 1, 1957, then Swisher County in the 64th Dls-
trlct as reconstituted would have only one term of
court in 1957, that is, the March term which was con-
vened under the present law (Acts 19471 for the new
terms provided for Swisher County will commence on the
first Monday in February and August, both of which
are prior to the effective date of House Bill No. 438,
as provided in the Bill. The September term, as pro-
vided by the present law (Acts 1947), would be abolished.
Likewise, in the new 154th District, Bailey
County would have only one term of court In 1957, the
March term; since its November term would be abolished
by the bill, and its new terms under House Bill No. 438
also occur in February and August, prior to September 1,
1957.
Hale County, In the 64th District, has already
convened two terms of court, in January and July.
Castro County, in the 64th District, has had one term,
which was convened in May, and while Its September
term would be abolished, the bill would give it,a
term in October, which would make the required two
terms. Lamb County, in the 154th District, has
already convened one term of court In February, and
will have one more term in August, all prior to Sep-
tember 1, 1957. Parmer County, in the 154th District,
has had one term of court under the 64th District
Court in April, and under the bill would have a
September term under the 154th District Court.
The questions to be decided are:
1. What is the effective date of the Act
creating the new 154th'District Court, and changing
the 64th District Court so as to take away from it
the Counties of Hale, Swisher and Castro?
2. Since Swisher County in the 64th District
and Bailey County in the new 154th District will each
have only one term of court during the calendar year
under the terms of House Bill 438, what are the dates
for the terms of Court in said two counties in order
that each court will have two terms of court during
the calendar year 195'7?
Article V, Section 7 of the Constitution Of
Texas provides in part as follows:
Hon. Joe L. Cox, Page 3 ( ww-197 )
"The State shall be divided into as
many judicial districts as may now or
hereafter be provided by law, which may
be increased or diminished by law. For
each district there shall be elected . . .
a Judge, . 0 . He shall hold the regular
terms of his Court at the County Seat of
each County in his district at least twice
in each year in such manner as may be pre-
scribed by law. The Legislature shall
have power by General or Special Laws to
make such provisions concerning the terms
or sessions of each Court as it may deem
necessary." (Emphasis added)
Section 1, Article 1919, V.A.C.S. reads in part
as follows:
"All district courts in this State,
. . . whenever and however created, shall
hold at least two (2) terms of court per
year in each county wherein they sit . . ."
Numerous authorities are cited by you which
construed Acts changing the terms of various district
courts. All of these decisions are of the same tenure
and holding as the following statement contained in
11 Tex. Jur. p* 803:
"When a law, if construed as operative
from the date it became effective, would
deprive a court of one of the two terms
guaranteed, it is uniformly held that the
Court should operate under the former law
until such time as the new enactment may
validly go into effect. This does not mean
that there may not be a valid provision
for more than two terms of the District
Court, but merely that there must be at
least two."
Among the decisions cited by you and which hold
as set out above are the following:
Ex parte Murphy 27 Tex. Crim. 492, 11 S.W.
487 (Texas Court of Apieals, 1889); Nobles v. State,
57 Tex. Crim. 307, 123 S.W. 126 (1909); Ex arte
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Hon. Joe L. Cox, Page 4 (ww-197)
Edgar v. State, 96 Tex, Crim. 1 255 S.W. 748
Engleman v. Anderson, et al, 244 S.W. 650 (Civ.
App. 1922, error ref.); Ex parte Curry, 156 Tex. Grim.
499, 244 S.W.2d 204 (1951). I
It will be noticed that none of these cases
involves the effective date of an Act creating a Court
which did not provide two terms of court during the
calendar year that the court was created and became
effective. Such cited cases involve the matter of
changing the terms of district courts and the effect
of such changes where the county was deprived of two
terms of court.
As we view the matter, there is quite a difference
between (1) an Act which changes the terms of a partl-
cular court, and (2) an Act which creates a new court
and provides for the terms of such court. It is to be
noticed that Section 1 of the Act provides that after
the effective date the 154th District is created to
be composed of the Counties of Lamb, Bailey and Parmer,
and that Section 2 provides that after the effective
date of the Act, the 64th District is to be composed
of the Counties of Hale, Swisher and Castro. It is to
be noticed from these sections that the 154th District
is "created" while the effect as to the 64th District
1s merely to drop Lamb, Bailey and Parmer Counties from
that District, or as stated in the caption and body of
the Act, it is "reorganized".
The Legislature may create a court and provide
for its effective date although the Act creating the
court may not provide for any term of court. (As we
will see later, the Judge may call a special term at
any time). In St. Louis S.W. Ry. Co. of Texas v.
m, 98 Tex. 480 ti5S.W. 786 (1905) the court con-
strued an Act of ihe Legislature in which a new court
was created, and placed Delta County in this new
District and specifically provided that said court
should hold only one term of court each year in Delta
(Delta County was also in another District
%??had two terms each year in Delta County). An
attack was made on the validity of this court because
the Act creating it did not provide for two terms
each year. In upholding the validity of the Act,
the Court said:
"The provision most relied on is that
fixing a time for the holding of only one
term of the court in Delta County, which
Hon. Joe L. Cox, Page 5 (w-197)
is assailed as being in conflict with section
7, art. 4, of the Constitution. That section
provides for the division of the state into
districts, and the selection of a judge,
whose qualifications and salary are fixed,
and who is required to 'hold the regular
terms of his court at the county seat of each
county in his district at least twice In
each year in such manner as may be prescribed
by law.' It also empowers the Legislature to
provide for the holding of more than two regu-
lar terms per year and of special terms. Much
that is essential to the existence of the
courts Is thus prescribed by the Constitution
itself, while some of the things needed to
bring them into active operation are to be
provided by the Legislature. The districts
must be formed and the times for holding the
courts prescribed by legislation, and
without these there is no court authorized
to exercise the jurisdiction defined by the
Constitution. The contention here is that,
although the Legislature has defined the
territory to compose the district, and has
fixed times for holding the court twice a
year in two of the counties, and once a
year in the third, it has not done enough
. to authorize the appointment of a judge and
the holding of court, because of the omission
to provide for a second term in each year in
the third county. To us, this contention
seems to mistake the nature of the provision
for two terms, by treating it as an inhibi-
tion of any provision for one term. As terms
of courtscannot be held until times are
prescribed by law, it is plainly the duty of
the Legislature to make such provision. But
this is an affirmative command, and not a pro-
hibitory provision. The courts have no power
to enforce the performance of this duty in
whole, and, in our judgment, have as little
right to strike down, as unauthorized, a per-
formance of it in part, merely because the
Legislature has not gone as far as the Con-
stitution may require. When the Legislature
has provided for one term in a county, it has
not done a thing prohibited or unauthorized
by the Constitution, but has done a part of
that which the Constitution commands it to do.
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Hon. Joe L. Cox, Page 6 (ww-197)
If there had been no judicial districts
when the Constitution was adopted, and the
Legislature, In forming them, had provided
for only one term of court in each county
in the state, can it be true that the people
would have been deprived of courts because
the provision made stopped short of that
intended by the Constitution? If the Legis-
lature in session in January should form a
new district or add a county to an existing
district, and provide for a term of court in
March, and, after that had been held, the
Legislature, being still in session, should
further provide for another term in the same
county in September, we suppose no one would
say that the courts could not legally be held
under this authority, or that its proceedings
would be void. Yet to that proposition we
would inevitably be led by adopting the con-
tention that, to the construction of a valid
district and a lawful court, antecedent
provision for two terms a year in each county
of the district is essential. If the Legis-
lature, in forming a district, by oversight
fails to provide for one of the regular terms
in one of the counties, or, in attempting to
so provide, employs such uncertain language
that the time cannot be legally ascertained,
would it not be unreasonable in the extreme
to hold that the whole act, the court, and all
of its proceedings are to be treated as if
they had never been? We cannot yield our
assent to a doctrine leading to such conse-
quences. In our opinion, provision made by
the Legislature for one term of a court a
year Is within the authority conferred and
is a partial performance of the duty imposed
by the Constitution; and, if it be true that
this is not the full measure of such duty,
that does not authorize the courts to say that
it is not within the authority. . . . We
are of the opinion that the statute organizing
the court a quo is constitutional in its pro-
visions establishing the court in all of the
three counties, and that the court had juris-
diction to try this cause and render the judg-
ment appealed from, which makes it necessary
that we consider the Grounds urged in support
of the writ of error.
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Hon. Joe L. Cox, Page 7 (ww-197)
Practically every Legislature creates one or
more District Courts and In each Act in nearly every
instance provides that it shall become effective on
September lst, and in most Instances only one term of
court is provided for the remainder of the calendar
year during which the court was created. For example,
in House Bill 81 of the Regular Session of the 55th
Legislature page 721, Acts of 1957, a Court was created
for Travis County effective September 1, 1957. The Act
provides for four terms each year beginning on the first
Mondays of January, April, July and October. We see
that this new court will have only one term of court
during the calendar year 1957. Can it be said that the
creation of this Court will not have effect until the
first Monday in January merely because it can only have
one term of court during the calendar year 1957? We
believe not. The same is true with the new 154th Dis-
trict Court created for three counties which have been
taken from the 64th District and placed in the new 19th
District.
In addition to the above, the caption of the Act
provides an effective date. Section 12 of the Act pro-
vides that the effective date is September 1, 1957.
The so-called emergency clause only calls for suspending
the three day rule and does not provide for immediate
effect under an emergency, but is to be in effect
after its effective date as provided in the Act.
In view of the above, it is our opinion that the
effective date creating the 154th District and changing
or reorganizing the 64th District as provided in the
Act underquestion is September 1, 1957.
The next matter to be considered is the effective
date of the terms of court in each district. The facts
pertaining to the terms that will exist if the Act is
effective September 1st have already been noticed.
Only Swisher County in the 64th District and Bailey
County in the 154th District present any question as
to when the terms of court should be held. Since
Swisher and Bailey Counties have no terms during the
calendar year 1957 after September 1st under the new
Act, we believe that if it is desired to hold terms of
court in those two counties after September 1st and
before January, by analogy the rule above set out per-
taining to the statutes changing the terms of court may
well be followed; thatis, each court may operate under
the former law as to the terms of court until such time
as they can have two terms each year under the new Act.
Hon. Joe L. Cox, page 8 (ww-197)
We say this for the reason that the effect of the new Act
is mere1 to change the terms of court In Swisher County
in the 6 % th District, and since Bailey County is not in
any District other than the 154th under the new Act, we
believe that it can logically be said that the practical
effect of the new Act is also to change the terms of
court in Bailey County.
We realize, however, that this is a difficult
question, and we suggest that if it should be desired
to hold a term in Bailey County after September 1st and
before the first Monday in February, the court could
meet on the first Monday in November as provided by the
old law, and also call a special term to coincide with
the old term of the first Monday in November. (Article
1920 V.A.C.S. authorizes the calling of special terms).
If this is done, then any action taken by the court should
be legal. If the old term should not be valid, the
special term will certainly be valid.
As to Swisher County in the 64th District, the
court can follow the same procedure by having a regular
term the first Monday in September and by calling a spe-
cial term to coincide with It.
This is our answer to the second question.
SUMMARY
The effective date of House Bill 438,
55th Legislature creating the 154th
Judicial District and reorganizing the
64th District is September 1, 1957.
In having terms of court in Swisher and
Bailey Counties during the calendar year
of 1957, the old law as to terms of Court
in those Counties should be followed and
special terms should be called to coin-
cide with such regular term.
Yours very truly,
HGC:jas WILL WILSON
i4PPROVED Attorney General of Texas
OPINION COMMIT7FEE
James N. Ludlun1, mm.
BY
REVIEWED FOR THE
ATTORNEY GENERAL BY:
Geo. P. Blackburn