Untitled Texas Attorney General Opinion ( 1968 )

1 .
T&E ATTORNEY GENERAL
OF TEXAS
lbvember 7, 1968
IionorrbleRiabard IL Price Opinion MO. X-305
District Attorney
Taylor County Courthouaa
Abllane, Texas Rer Term of the Presiding
Judge of the 7th
Administrative Judicial
.'District under Article
2008, 8~. 2, Vernon's
Civil Stetutea, in view
Dear ML. Prices of the stated facts.
Your request
for an opinion on-the abwe subject mstter
states that on March 12, 1965, the District Judge of the 104th
Judicial District was designated by the Gwernor of the State of
Texas as Presiding Judge of the 7th Administrative Judicial
District. Such appointmant was confirmed by the Texas Senate
and that district judge qualified as Presiding Judge of the
7th Administrative District on March 30, 1965. 'You further
state that he will retire as District Judge of the 104th
Judicial District of Texas on December 31, 1968. In view of
the foregoing stated facts you have inquired as to the expiration
date of the term of the Presiding Judge of the 7th Administrative
Judicial District under the prwisiona of Section 2 of Article
ZOOa, Vernon's Civil Statutes, as amended in 1965.
As origlnally enacted in 1927 by the 40th Legislature,
Section2 of Article 20Oa, Vernon’s Civil Statute& provided
'? as follartac
*Sec. 2. Imaedlptely after this act
becomes effective it shall be the duty *of the
Governor, with the advice and consent of the
LSenate, to designate one of the.regularly
elected and commissioned district judges of
each of said districts as Presiding Judge of
the Administrative Judicial District. Upon.the
death, resignation or the expiration of the .
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Hon. Richard M. Price, page 2 (n-305)
term of office of such Presiding Judge, the
Governor shell thereafter immediately designate
a new Presiding Judge of the Administrative
District, as in the first instance."
In construing th'eforegoing provisions,,the Court
in Eucaline Uedicine Comoanv vs. Standard Inv. Co., 25 S.W.28
259, 261 (Tex.Civ.App. 1930, err. ref.) expressly overruled
the contention that the position of Presiding Judge of an
Administrative Judicial District is an "office' within the
,meaning of Section 40,,Article XVI, and Constitution of Texaa,~
pertinently held:
nNor is the position of preaiding judge
of the administrative dia'trictan office that a'
regularly elected district judge is forbidden
by the Constitution to hold and exercise. Its
functiona are'j~udicialin nature, are ,not in-
consistent with',theconstitutional duties d&the
district judge, and should. in our oninion.?be
regarded aimolv aa aunaradded duties that the ",
Leaialature waa,authori ed o reau e district +
judaea to nerform.* (I&ha:is add::.)
In view of the refusal by the Supreme Court'of the
writ.of error in this case in 1930, this being after June 14,
1927, the judgment of the Court of Civil Appeals is deemed
correct and the principlea of iaw declared in the opinion are
deemed as correctly determined. Hamilton v. Emnire 6218& Fuel
.gQ.. 134 Tex; 377,383,llO S.W.Zd'561,565 (1937).
In view of the construction of Section 2, Article 200a,
it was held in Attorney General,Oplnion Number S-09 (1953) that
the term of a ipresiding judge of an administrative judicial,
district is the same as his term of office as district judge
and that the designation as Presiding Judge of the administrative
district is not a sepsrate office but merely an extra duty that
may be imposed upon a district judge,
In 1965, the 59th Legislature amended Section 2 so that
it now providesg
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,
Hon. Richard W. Price, ,page 3 (&305)
*Sec. 2. It shall be the duty of the
Governor, with the advice and consent of the
Senate, to designate one of the regularly elected
district judges, or a retired district fudae. who
voluntorilv retired from office. who.reaidea within
the district. and who has certified his willincmeaa
to aerve,'in each of said diatrititaaapreaidinq
Judge of the Administrative Judicial District.
Adeauate auartera for the ooeration of such District
and orenervation of records shall be Provided in the
courthouse of the countv in which such Preaidinq
Judae reaidaq. Upon the death, resignation or
expiration of the term of office of #pch Presiding
Judge, $he Gwernor shall thereafter iammdiately
a&oint*'or reappoint a PreaidLng,Judge of the
Administrative District, as in the first instances
above. Presidina Judaea of Administrative Judicial
Districts shall serve for a term of four (4) Years
from date of auallfication as su h administrative
judqe . . .* (Rmphaaia aupplied'as to added language
of amendment.)
If the foregoing amendment to Section 2 of Article 200a
haa,the effect of now creating an "office" as distinguished fram
constituting "aunsradded duties that the~leaialature was authorized
to reuuire district iudaea to oerform", Section 40 of Article
XVI of the Constitution of Texas would prohibit a district judge
from holding the additional affice. We do not believe the
legislature had any such intention. Likewise, Section 30 of
ArticLe XVI would limit the term of office to two years only,
contrary to the four year term provided by the legislature.
It is our opinion, however, that since the legislaturs did not
change by the amsndatory language the duties of the presiding
judge of the administrative district, the construction @Paced
on Section 2 by the Court in Rucaline Medicine Co. vs. Standard
Inv. Co., supra, remains equally applicable to Section 2, as
amended. Therefore. no *office" within the meaning of Sections
30 and 40 of Article XVI of the Constitution of Texas was created,
Rucaline medicine Co. vs. Standard Inv. Co., aupra; cf. Aldine
Indeoendsnt School District vs. Stendlev, 154 Tex. 547, 289 S.W.
26 578 (19SS), We therefore are of the opinion that the legis-
lature merely placed added duties on regularly elected district
judges pursuant to provisions of Section 7 of Article v.
Constitution of Texas, and provided for the Yreassignmsnt to
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Ron. Richard H. Price, page 4 (d305)
active duty where and when needed" of voluntarily retired
district judges Qursuant to provisions of Section la of
Article V, Constitution of Texas.
Since Section 2 of Article 200a, Vernon's Civil
Statutes,specifically provides that "upon the death, resignation
or expiration of the term of,office of the presiding judge,
the Governor-shall thereafter~lmmediately appoint or reappoint
a QrSSiding judge of the administrative district as in the first
instance above,* (Emphasis ours). You are advised that the
words *term of office* as used in this statute mean the term
of office as district judge, this being the only 'office" held.
Upon certification of his willingness to serve after retirement,
the same presiding judge may be reappointed to.carry out the'
additional duties as presiding judge of the administrative
district for a Qeriod of four years or the Gwernor may appoint
another judge to so serve.' \
.i.
SUMMARY
The position ?f preeiding judge of an
administrative judicial district does not conatitute~
an "office" within the meaning of Sections 30 and 40
of Article XVI of the Constitution of Texas, but is
regarded simply as superadded dutiesthat the legia-
lature was authorized to require district judges to
per farm. Eucalins Wedicine~Co. vs. Standard Inv.Co,,
25 S.W.2d 259 $T~x.CIV.AQQ. 1930, err. ref.). The
term of the QrSSiding judge of an administrative
judicial district expires with his term of office
as District Judge. Upon certification of his
willingness to serve, he may be appointed for an
additional period of four years. Article 2GOa,
Section 2, Vernon"8 Civil Statutes.
V&truly yours.
At$rney General .of ffexaa
3.'.
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I
. .
Hon, Richard M. Price, page 5 (M-305)
Pixpared by John Banks
Assistant Attorney General
APPROVED:.
OPINION CCUMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Arthur Sandlin
Ralph Rash
Harold Kennedy
Jay Floyd
,A, J, CARUBBI, JR.
Executive Assistant
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