Untitled Texas Attorney General Opinion ( 1971 )

Honorable Robert S. Calvert Opinion No. M- 1003
Comptroller of Public Accounts
State Finance Building Re: Salary of the Presiding
Austin, Texas 78711 Judge:of the Court of
Criminal Appeals, pur-
suant to Section 4 of
Article V of the Constitu-
Dear Mr. Calvert: tion of Texas.
Your recent letter requesting the opinion of this
office concerning the referenced matter poses the following
question:
"What is the proper salary to be paid the
Presiding Judge of the Court of Criminal Ap-
peals beginning September 1, 19711"
Section 4 of Article V of the Constitution of Texas
provides, In part, as follows:
'The Court of Criminal Appeals shall consist
of five Judges, one of whom shall be Presiding
Judge, a majority of whom shall constitute a
quorum, and concurrence of three Judges shall
be necessary to a decision of said Court. Said
Judges shall have the same qualifications and
receive the same salaries as the Associate
Justices of the Supreme Court. . . .'
Senate Bill 11, Acts of the 62nd Legislature, Regular
Session, 1971 (General Appropriations Act for the fiscal year
ending August 31, 1972), contains the following item of appropria-
tion to the Supreme Court of Texas:
"1. Judges, 8 at $33,000 and
Chief Justice at $33,500 $297,500"
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Hon. Robert S. Calvert, page 2 (M-1003)
Said Appropriations Act also makes the following ap-
propriation to the Court of Criminal Appeals:
"1. Judges, 4 at $33,000 and
Presiding Judge at $33,500 $165,500"
The essence of your question is this: Is the Presiding
Judge of the Court of Criminal Appeals to be paid a salary equivalent
to that of an associate justice of the Supreme Court ($33,000), or
the modestly higher salary ($33,500) appropriated for him in the
current Appropriations Act, which is equivalent to the salary of the
Chief Justice of the Supreme Court?
We are of the opinion that the sentence "Said Judges
shall . . . receive the same salaries as the Associate Justices
of the Supreme Court," found In Section 4 of Article V, supra,
has application only to the associate judges of the Court of
Criminal Appeals, and that it was the intent of the people, in
enacting said constitutional provision, that the salary of the
Presiding Judge of the Court of Criminal Appeals was to be equal
to the salary paid to the Chief Justice of the Supreme Court.
In so holding, we are mindful of the facts that both
the Chief Justice of the Supreme Court and the Presiding Judge
of the Court of Criminal Appeals are charged with numerous ad-
ministrative and non-judicial duties which the associate members
of those courts do not share. Further, the post of Presiding
Judge is specifically and separately set forth in Article 1802,
Vernon's Civil Statutes. And like the Chief Justice, the Presiding
Judge is to be elected to that position by the voters of this
State. Article V, Sec. 4, Texas Constitution.
When Section 4 of Article V of the Constitution, es-
tablishing the Court of Criminal Appeals, was enacted in 1891, it
was the intent of the people that the Court of Criminal Appeals,
and its judges, were to be co-equal in status, dignity, and per-
quisites with the Supreme Court and its judges. See, generally,
the Interpretive Commentary to Section 5 of Article V. Further-
more,
"Texas is one of only two states in the
Union which have two courts of final jurisdlc-
tion, one for civil cases and the other for
criminal. The two courts are of equal dignity
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. .
Hon. Robert S. Calvert, page 3 (M-1003)
and each is supreme in its own field. By con-
stitutional provision, the official title of
the court having final jurisdiction in civil
cases is the Supreme Court and the title of
the court having final jurisdiction in
crimin%l cases is the Court of Criminal Ap-
peals. vol. XXI, p. 439, 1969.
Moreover, we are of the opinion that the provisions
of Section 4 of Article V must be considered in light of.Section
l-a of Article V. That latter Section provides, in part, that:
"(1) Subject to the further provisions of
this Section, the Legislature shall provide for
the retirement and compensation of Justices and
Judges of the Appellate Courts and District and
Criminal Courts . . ." (Emphasis added.)
Thus, Section l-a of Article V clearly provides that the Legisla-
ture shall provide for the amount of the compensation of the
judges of the Court of Criminal Appeals, subject, of course, to
the command of Section 4 of Article V that the compensation of
judges of the Court of Criminal Appeals shall be equal to that of
justices of the Supreme Court. This the Legislature has done; the
Legislature has made the compensation of the Judges and Justices
of the two courts the same and has fixed the compensation of the
Presiding Judge the same as that of the Chief Justice, acting under
thelr constitutional prerogative to fix the salaries of the Judges,
Justices, Chief Justice, Presiding Judge, etc. We presume that they
had a constitutional intent and acted constitutionally.
Sections l-a and 4 of Article V must be construed to-
gether, and any inconsistency in their wording must yield to
their overriding intent and purpose, and every effort should be
made to construe these Sections in an harmonious manner. 53 Tex.
Jur.2d 282, Statutes, $186. Furthermore, different sections,
amendments or orovisions of the Constitution which relate to the
same subject matter should be construed together and considered
in light of each other. Purcell v. Lindsay, 158 Tex. 541, 314
S.W.2d 283 (1958); Attorney General's Opinion No. M-193 (1968).
As the Supreme Court of Texas has stated in Collinnsworth Counts
v. Allred, 120 Tex. 473, 40 S.W.2d 13 (1931):
"The Constitution must be read as a whole,
and all amendments thereto must be considered
as If every part had been adopted at the same
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Hon. Robert S. Calvert, page 4 (M-1003)
time and as one instrument, and effect must be
given to each part of each clause, explained
and qualified by every other part. Gilvert v.
Kobbe, 70 N.Y. 361. Different sections, amend-
ments, or provisions of a Constitution which
relate to the same subject-matter should be
construed together and considered in the light
of each other. Dullam v. Willson, 53 Mich.
392, 19 N.W. 112, 51 Am.Rea. 128; State v.
Astoria, 79 Or. i,-15'r P. 399."--120 Tex.~at
479, 40 S.W.2d at 15.
In addition, Article 6813b, Vernon's Civil Statutes,
provides, in part, as follows:
"From and after the effective date of this
Act, all salaries of all State officers and
State employees, including the salaries paid
ans individual out of the General Revenue Fund.
shall be in such sums or amounts as may be pro-
vided for by the Legislature in the biennial Ap-
propriations Act." (Emphasis added.)
In appropriating the sum of $33,500 as the compensation
of the Presiding Judge of the Court of Criminal Appeals, a sum
equal in amount to the compensation of the Chief Justice of the
Supreme Court, the Legislature was both fulfilling its constitu-
tional duty pursuant to Section l-a of Article V, and manifesting
its interpretation of the sentence of Section 4 of Article V that
is here at issue. This legislative interpretation, and harmonizing
of, those two constitutional provisions will be given great weight,
if not controlling effect. 53 Tex.Jur.2d 265-67, Statutes, $178.
In view of the foregoing, you are advised that the salary
of the Presiding Judge of the Court of Criminal Appeals, pursuant
to Sections l-a and 4 of Article V of the Constitution of Texas, is
equivalent to that of the Chief Justice of the Supreme Court, and
is in the amount of $33,500 per annum.
SUMMARY
Pursuant to Sections l-a and 4 of Article V
of the Constitution of Texas, and the provisions
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Hon. Robert S. Calvert, page 5 (M-1003)
of Senate Bill 11, Acts of the 62nd Legislature,
Regular Session, 1971 (General Appropriations
Act for the fiscal year ending August 31, 1972),
the salary of the Presiding Judge of the Court
of Criminal Appeals Is $33,500 per annum.
y truly yours,
C. MARTIN
General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:'
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Scott Garrison
Roland Allen
Lonny Zwiener
J. C. Davis
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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