Untitled Texas Attorney General Opinion ( 1947 )

Boon.Robert L.~%;Yrk *opitioa'lb. T-851
County Attorney
Lamb County Re:JTexm time of the Ria-
Littlefield, Texas trict Court, 64th 'Judi-
oia1 Dim?iot, an the
'ligrrtof ramid le is-
lation mwting te f
distriot.
P5ar Sir,: .*
we refer to your letter o,faeajr
84, 1947, s,a
whioh you requested anopinion of this Department and
which reads in part as.follows:
"The District Court of Lamb County
has been and is in the 64th Judicial Disc,
trict. The last term began on the 5th
Monday after the 1st bionday in January,
1947, and was supposed to continue in
session until the Saturday preceding the
1st Monday in Augur&. A Grand Jury wae
duly impanelled and attended te the busi-
ness thea on hand. It was recessed until
suoh time during the term as it might !,
agaSn be needed. During this present see.-
SPOB of the,Legislature,a bill was Lntro-
duced, pansed and became effeotive on Ray
,Q 1947 which added Parmer County to the
64th Judicial District, This bill slight-
ly changed the terms of the varioue courts
in the Distrbot. Xt did Rot change the
be inning date of the next term of the,Dls-
tr1ot Court in Lamb County. This bill made
no provision for ,theoantinuatlonot the
terms of, ,court then in seasion. It ia a&B-,
templated, e.nd,thereexists a neoessity for
calling the Grand Jury in Lamb County back
into eeeeion before the next term of Court, ;
"Does the February term of C,ourtoon-
tinue in Iamb County until the gaturday be-
fore the 1st Monday in Augurst,19477
Hon. Robert L. Kirk - Page 2
"If the Grand Jurors iRhowere im-
anelhd
]x. : in February were called back
nto aessibn at this time;would an in-
dictment presented by them be valid?=
Upon checking the Bill in the Secretary of
State's office.as passed by the Legislature,we find
that it further provides that the terms of Court for
Lamb County shall begin on the first Monday in February
and the first Monday in August; and that eaoh term of.
Court,.ineach of such counties of the 64th District nay
continue until the Saturday imnediatelypreoeding the
Honday for oonvenlng the next regular term therein.
The pertinent portion of Article V, Section
7, of the State Constitutionprovidea:
*The State shall be divided into
,aemany judioial diatriote as may now
or hereafter be provided by law, whioh
may be increased or dipliniahedby law
. * . He shall hold the regular terms
of his court at the county seat of each
county in his distriot at least twioe
In each year in such manner as may be
prescribed by law.*
In Keaton v. Stafe, 57 S.W, 1125, the appel-
lant, under facts Similar to those berore us here, con-
tended that the Court at the time of his conviction;was
not lawfully in $ea&on, beoauee~theLegislaturehad,
since the convening of the Court, repealed the law fix-
ing the time for holding terms of the District Court in
and for Coleman County by passing an amendment fixing
the tiinesfor holding said Courtin 'saidaounty, which
terminatedthe February term, 1899, of said Court and
this Court could not again lawfully.bein session before
the first Monday in September, 1899. 7Vequote from the
caee as followa:
n. . .Themregular'timefor the,'
convening of the term of oourt at which
appellant was tried was the first Monday
in February, 1899,-.
to continue
- in see-
. _
91011four weeks. The Court was organized
on said day. While the court was in ses-
sion and being held under the then-exist-
ing law, the legielaturepassed an act,
with the .emergenQ clause attached, mere-
ly addingto the term of court for Coleman
Hon. Robert L. Kirk .-.Page 3
county one weeks The amendment pro-
vided for the term to begin the first
Monday in February and to remain in
session five weeks,. It will be seen
from this that the beginning of the
term waa not changed, ana that the
olear intendment of the legislature
‘was aimply to ‘giveone additionalweek
to Coleman county for the distriot
court, and the amendment was not in-
tended to have a retrospeotiveeffect,
60 as to repeal the then-existing
term of the distriot oourt of Coleman
county. Article 5, PI,7,of the con-
stitutionprovides: ‘The state shall
be diviaed into as many judioial dis-
triote as may now or hereafter be pro-
vided by law, which may’be iacreaaed
or diminished by law+. Be (the die-
trlot judge) shall hold the regular
term of his court at the county seat
of,eaoh oounty in his district at
least twice each year, in such menner
as may be presaribed by law.( The
bare statement o.fthis oohstitutional
provision would certain1 precluds the
ooastruotionof the amenLe nt by the
legislatureas contended for b appel-,
lant; his oontentionbeing thaf the
amendment repealed the previ~ua law
whereby the session of the distriot
oourt of Coleman county was authorized
to begin on the first Monday fn Febru-
ary. If this is~a repeal of the old
law, then Coleman oounty would be de-
prived of on% term of the diatriot
court, which would be in the face of
the a$n&itutional prsvision quoted
l L .
In the case of Rx parte Murphy reported in
11 5. w. 487, the defendant insisted that his oonviotion
was ‘illegaland void beoause rendemd at a time when a
legal term of the Court could hot be had& We quote from
the same as follows:
”
o ,Thefacts ,arethat the aaid
term wai ie’ldat the time“fixedbyethe
act of 1885, (Laws 1805, p’.8,) that is,
Hon. Robert L. Kirk - 'Page4
commencing on the fifth after the first
Monday in March. On April 2, 1829, six
days prior to the convening of said term,
on April 8th, an aot was passed by the
legislatureohangiw the time of holding
said court in said county to the fourth
Monday in Uarch.~ This act contains an
emergency clause, and declares that it
shall take effect from.its passage. Ap-
plicant contends that after the passage
of said aot of April 2, 1889, a legal
term of the dietriot oourt for Karnea
county could not be held, except at the
times prescribed by said act:
*We are of opinion that the term
of the oaurt at whioh the oonviotionwas
had was a legal term. If it were held'
otherwiee, the effeot woulU be t&deprive
Karnes county of on0 term of said court
for the present year, when the constitu-
tion dealares that twu terms of the dis-
trict court shall be held each year sin
eaoh county. Con&, Art. 5,I37, In-con-
struing an act of .thelegislature,,It is
the duty of the court to so interpret‘the
legislative iatent as to harmonize the
pr@YiSiOi.Mof'the sot with the oonstitu-
tion, if this can be,done rea,eonably,&It
must be presumed that the legislaturedid
not intend to disregard the above-cited
provision of the oonatitutionby depriv-
ing Karnes or any other'countyof the disc
triot of the oonstitutfonalright to have
two terms of the diatriot court in each
year. If such was the intent, the act
would be void, and the courts in that dis-
trict would have to oontinue to be held at
the times fixed by the old law. Wotwith-
standing the emergency clause'in said abt
of April 2d, we feel justified in ho&ding
thatit uas not the legislativeintent
that said act should immediately take ef-
feot, but that it should become operative
only at a time whsn it would not deprive
any oounty in the district of~,twoterms of
court, , r"
In view'of the foregoing, you are respect-
Hon. Robert L. Xirk - Page,45'>
fully adrieed that it is the opinion ot this Department
that the February term of Court continues in Lamb Coun-
iig4ytil the Saturday before the iirat Monday in August,
. (8~ aleo Bowden, et al, Y. Crawford, 195 S.W.5)
This being true, it naturally follow6 that
the second question is answered in the arfi~mative.That
ia, ii the Grand Jurors who were impanelled in February
were oalled back'into session at this time, an indiot-
ment presented by them would be valid.
SUMMARY
The preeent term of the Dietrict Court
of Lamb County remaina unohanged for the re-
mainder of the ,term even though the Legia;
lature passed a Bili effeotiveMay 3~1947,
changing the terms of'oerta~incounties of the
04th Judioial Distriot, of which Distriot
lamb County belonga,~.ana,althoughthe Bill
made no provision for the oontinuatiohof the
terms of Court .thenin ee$sion; otherwise the
,oounty?iwouMbe deprived or two full terms or
Court each yeax,in violation of Article V,
Seo. 9, of the State Constitution, Keaton v,
State, 57 S.W. '1125;Ex parts Murphy, 11 S.W;
4870 If the 'GrandJurora who were impaaelled
in the February term wexe callea back-into
session at this times an lndiotment presented
by them would be valid. :
Very truly yours
ATTORNEY GEWBRAL 03'TEXAS
BA:WR Assistant
APPROVED JURE 12, 1947
iiiii&or ,-a