Untitled Texas Attorney General Opinion ( 1973 )

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THE ADTTORNEY GENERAL
OFTEXAS @P
A``~IN.TEXAR 78711
The Honorable Maurice S. Pipkin Opinion H- 57
Executive Director
State Judicial Qualifications Commission Re: Whether a hearing
P. 0. Box 12265, Capitol Station before a Master
Austin, Texas 78711 cmnes under Rule
254 of the Texas
Rules of Civil
Dear Mr. Pipkin: Procedure?
As executive director of the Judicial Qualifications Commission you
have requested the opinion of this office on the question:
“Does a hearing before a master pursuant
to the Rules for the Removal or Retirement of
Judges come under Rule 254 of the Texas Rules
of Civil Procedure? ”
Rule 254, appearing also as Art. 2168a, V. T. C. S., as amended by
H. B. 264 by the 63rd Legislature, makes a continuance of the cause man-
datory “[i]n all suits, either civil or criminal, or in matters of probate,
pending in any court of this State and in all matters ancillary to such suits
which require action by or the attendance of an attorney . . . ” when~it
appears by affidavit that any party applying for the continuance, or any
attorney for any party is or will be in actual attendance at a Legislative
Seseion.
In our opinion, a Texas Rule of Civil Procedure providing for Legis-
lative continuance has no application to a hearing before a Master in the
course of proceedings conducted by the Judicial Qualifications Commission.
Article 5, $ I-a (11) of the Constitution of Texas provides:
“The Supreme Court shall by rule provide for
the procedure before the Commission, Masters and
p. 243
The Honorable Maurice S. Pipkin, page 2 (H-57)
the Supreme Court. Such rule shall afford to any
person. . . against whom a proceeding is instituted
to cause his retirement or removal, due process of
law.. . . Due process shall include the right to
notice, counsel, hearing, confrontation of his accu-
sers, and all such incidents of due process upon
proof of which a penalty may be imposed. ”
The Supreme Court has exercised this constitutional authority by
promulgating and adopting the Rules For The Removal or Retirement of
Judges. Our courts have held that when the Constitution grants certain
powers, and the means by which these powers can be exercised are pre-
scribed, such means are exclusive of all others. Crabb v. Celeste In-
dependent Schoql Dist., 146 S.W. 528 (Tex. 1912); City of Fort Worth v.
Howerton, 236 S.W.2d 615 (Tex. 1951); White v. State, ~440 S. W. 2d
660 (Tex. Crim. 1969).
Since the Constitution has vested rule-making authority for the
Commission in the Supreme Court, we believe the only rules having force -7
and effect in proceedings before a master appointed by the Commission
are those expressly adopted by the Court.
Rule 15, “Extension of Time” in the Rules for the Removal and Re-
tirement of Judges controls your question:
“The chairman of the Commission may extend
for pe’ridds not to exceed 30 days in the aggregate the
time for fi,ling an answer, for the commencement of
a hearing before the Commission, and for filing a
statement of objections to the report of a master, and
a master may similarly extend the time for the corn-
mencement of a hearing before him. ”
In our opinion Rule 15 limits the extension of time for a hearing before
a master to 30 days in the aggregate, and this extension is discretionary,
not mandatory.
p. 244
r
The Honorable Maurice S. Pipkin, page 3 (H-57)
We have considered Rule 7 “Hearing” which requires that “[a]t the
time and place set for hearing, the Commission, or the master, shall
proceed with the hearing as nearly as may be according to the rules of
procedure governing the t:rial of civil causes of this State. ” A close
reading of Rule 7 discloses that it was intended to govern. proceedings
during a hearing before a Master, and not questions concerning when
the hearing should take place or for how long a period a hearing may be
postponed. This is the on:ly possible interpretation of the language
11. . . the master, shall proceed with the hearing. ”
SUMMARY
Rule 254 of the Texas Rules of Civil Procedure
does not require continuance of a hearing before a
Master in proceedings instituted against a judge by
the Judicial Qualifications Commission, where the
attorney for the judge is in attendance at a Legisla-
tive Session. The Supreme Court has exercised its
r‘ constitutional authority to promulgate rules govern-
ing procedure before the Commission or master and
has limited continuances of a hearing before the master
to a period not to exceed 30 days in the aggregate.
Very truly yours,
flzln
4, P,LL--cY
JOHN L. HILL
A,ttorney General of Texas
APPAOVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 245