Untitled Texas Attorney General Opinion ( 1949 )

THEATJYORNEYGENERAL
OF TEXAS
AUSTIN. TEXAS
ootober 10, 1949
Hon. Elton ffilllland op1niw Ho.v-927
C?tuptyAttorrhey
Iknierdcounty Be: Several qmstlanr oon-
Big spying, Texer oemi8q the or anlza-
tion OS thQ'~ll
8th ~~
Beer Hr. billiland: Ju?iol~~lM&riot.
Tow request zwlatlag to Home Bill Ho. 379,
A&a of the 51st Legislature,1949, whloh protide for
the orsatim of tha 118th JuddioialDistrict aourt of
Texas oomposed of Howard, Ilartin,and
fflassoookCounties,
presents the followbg questlotmr
1. When does the 118th Judlolal Distrlot oommenoe
to tllnatlon?
2. WhOa will the Offi0~~ O? the 118th Jttdlolal
Dlstrlot oopenoe to fmiotion'l
3.~How muoh oan the Distrlet Judge pay hlr Court
Ra~portter?
sulx4cquent1y
you ask:
4. ISa7an lndiotmentpresented'inthe 70th Judioial
Distriot be made the subjeot of a trial In the 118th Ju-
dioial Blatriot?
5. Vi11 the appointireDlrtriot Judge hawe to be
"reappointed"berom he oan take ofrloe?
iouae Bill Ho. 379 prowidea ia part:
"$00. 6. The 118th Jmdiolal M&riot of Texas
is hemby orei+d and ahall be oomposed of the Counties
of @ward, fflesscookard Hartin. Said DlstlllotCotart
shall be known au the 118th Judiolal District.
"SQQ.7. The tesms of said 118th J&loial
Court shall be a8 follow~~r
C
"In the County of HowamY on the fourth londay
of August, the fourth Monday in Ootobez, and fourth
-r .
-.
Eon. Elton %illlland, page 2 (V--927)
Wondey in Janaaq, and the fourth Monday In June.
"In the County of (tlasaoookou the firat Mon-
day in September and on the flrat &or&layin February.
"In the Couuty of lartln on the first Monday
in Oatober and the first #IondayIn January and the first
londay in Juue.
%aoh ten of Court in eaoh of suah Couutlea
may oontlnue uatil the date herelu fired for the begin-
ning of the next auooeeddlngten thereIn.
'sea. 8. Immediatelyupon the effeotiva date
of thia Aot the Qommuor shall appoint a suitable peraon
having the qualifioatl.ous provided by the Constitution
and laws of Texas for DlatFiot Judge, aa Judge of the
118th Judlolal Court. lieahall hold office aa suoh Judge
until the next general ale&Ion. . . .
*sea. ga Immadiatelyupon the passage of thlr
law the (ioremor shall appoint a suitable parson having
817 the qualifioetionaprovided by the Constitutionand -.
lava o? Texas for Distriot Attorney aa Distrlet Attorney
of the 118th matriot court. . .
%e. 12. As soon aa the Judge of the 118th
Judioial Dlstrlat is appointed aad quallfl8d he ah811
proooed to aaleot a Court Reporter o? the 118th Judlo1al
Dlatrlot who shall be paid the aama salary aa tha Court
Reportm of the 70th Judiolal Diatrlot is now paid aud
ah811 be paid out of the proper fund8 in keepiug with
the exlatlag lawa.
"See. 13. A11 prooeaaes issued or served be-
fore this Aot take8 effeot, fualudlng re6oguizanoeaend
bonds returnable to the blatriot Court of any of the
Countlaa of the 70th Judicial Dlstrlot, shall be oonsld-
ered aa returnable to said Couth in aooordauoewith the
terns as pmsoribed in this Aot, and all such prooesses
are hereby legalized and all Qrand and Petit Juries drawn
and aeleoted uuder exlatiag laws in say of the Countlea
of aaid diatriot shall l$ eonridered lawfully drawn and
selected for the uext term of the Blatrlot Court of their
respeotireCounties, aftqr this Aot takes sffeot, potid-,
lng that If auy Court la any County of said distriot shall
be in aaaalon at the tlma that thla Aot takes effect, aueh
Court or Courts affeoted hereby shall oontinua In reaslon
until the tow thereof has expired uuder the Prorlslons
.
Hon. Inton %lll~lma, pagR3 (v-927)
of the exiatlng laws, but theraafter the Court la amh
~~~~o~mCountlsrr shall oopform to the requmenta of
.
SOotiOn 39 of Artlole III, Constitutionof Tex-
es provides:
'If0law p8ded by t@e Leglal8ture
. . .,aball teke effeot or go into fore0
uutll ntuety days after the adjourrmentof
th@ aesslon at which l,twas eaaated, nn$
~losaIn oaae of an ammgenay, whlah emr-
gmmy rust be expresaqd In a preamble or
lh the body of the aat, the Legislature
shell by a vote of two thirds of all the
mb&ama eleoted to aaoh House, otherwise
dimt; meld vote to be taken by yeea sad
naSs and entered uppanfh$ journela."
Howe Bill no.379 paaaed the House on lay 5,
1949, by 133 a;$$ ~:~~;,;t~a5xmaaa~ %;h;z;-
oate on Ilay2% ,
Vas appmmd by the &emor on Juue 17, 1949. The 51at
Leglalature adjournedJuly 6, 199. It beoam bffeotl~ai
Octobsr 5, 1949, ninety Qya dter the edjourmwnt of the
,Leglalature,hevlng failed to reaelvea favorable vote
of two-thirds of all th& meqbqra elected (31) to the Se-
'oudand Llro Stook
iiAbhiirado6
Relative to your querrtlongo. 2 it la our Opln-
lormthat the ofrloem of the 118th Judicial Dlatriat
court will omaietm~ to innotion imaedlatelyupon Ootober
5, 1949, The Co&, whloh was @rested by Rouse Bill 379
and whloh oame Into existence'onOotober 5$h, till pro-
oeed with the bualneaa of the 70th Judlolal Dlatrlct as
~heaaame relates to Howard, lartln, aud Glasaoook Coun-
However, aeotion 13 of House Bill 379 provides
that'lf any oourt ahall be in meaalon at the time this
Act takes effect, awh Court shall continua ':insession
until the term thereof has expired. The conatruatlon
placed upon this language by this office la that tf any
term of Court is In session in the Dlstrfot la an of
the three oountlea*erred to upOa Octtiber5, 1919, It
shall oontlnue In session until the expiration of the
tens pursuant to APtfOb 199-70, V.C.S. Article 199-70
Hon. Blton Glllllaud,page 4 (V-97)
provides for a term of court to begin in Howard County
on September 5, 1949; In Glaasoook Count on July 18,
1949; and in Martin County on July 4, 1999, such tema
of ooort to oontlnue in sesalon until the Saturday night
IePnedlatelypreoedlng the Wondey for oonoenlng the next
regular terms of court in the reapeotlveootW,les. This
being true, when the 118th Judicial DlatrlotcameInto
exlstenoe on October 5th, awh term of oourt shall oon-
time until they have expired at the tlmea provided for
in Artlole 199-70. It would be incumbent upon the uewly
appointedDiatrlot Judge of the 118th Judloial District
to sit in the courts in rreaslonIn the counties of Howard,
Martin aud Glesscoek after October 5th until the explra-
tlon of the term8 thereof.
You have raised no question as to the oonstl-
tutlonalityof the statutes on aourt terms In question,
aad we express no opinion thereon.
Passing to your question Ho. 3 It la our opln-
ion that the Court Reporter for the 118th Judicial Dla-
trlot must be pald the aame a,alary88 the Court Reporter
meelves In the 70th Judlolal District upon the effec-
tive date of House Bill 379.
You state that it is your belief that the Co-t
Reporter should be paid la aooordeucewltb the general
statute relating to Court Rcipsrtera*Generally speak-
ing thts is true. But In this inatanoe the atanderd Seth
for the salary of the Coo& RepoPter is inoluded in a
special bill oremtlng a Dlatrlot Colurt. The courts have
held that a Court Reporter's aalery way be set by a spe-
cial law within the meaning of Artiole V, Section 1 of
the Texas Conatitutfon. Tolp
195 S.W.2d 845, (Tex.Clv.App.194b).
Question Ho. 4 is answered by the opinion of
the ooplrtrendered in the ease of Peddy v. State, 49 S.W.
28 745 (Tex.Cplm.1932),wherein the court stated:
"It Is suggested that no order of
transfer of this 0888 fraa the fourth to
the 123rd District is shown. Ho such
transfer was neaeasery. The iudiotment
was returned by a Grand Jury of Shelby
County end to the Dlatriot Court of that
. It still remained In that Court
Col.ultg
when tried. The Aot of the Legisleture
.-
-, Hon. Blton Glllllaud, page 5 (V-927)
ohaagad the numbar of the Judicial Dla-
trlat and the tlmea of holding aourt, but
In no way dlaturbed the lodgmamt of the
oaae in the Dlatrlot Court of Shelby
county.'
Also, see Lemons T. 8tate, 128 S.W.416 (Tex.Crlm.1910).
The nwlg appolutedDlatrlot Judge of the 118th
Judlolml Dlatrlot may try a defendant upon an lndlotnant
whloh wee presented la ~the70th Judlolml Dlatrlot la the
partloular oountlaa affeatedwhile aueh aountlaa wara a.
part of meld Dlatrlot.,
Your queatloa lo. 5 relates to thm aaoeaalty
Of mappolmtlug the District Judge for We 119th Judl-
ala1 Diitriot after the affactlre data of House Bill 379.
It la,our bplnion that Cha wwly appointadDlatriat Judge
for the 118th Judlolal Dlatrlat does nst need another ap-
pointment from the Governor or another oonflmatioa by
the Sam&a. /~
Iu the ease of State ex ral. Bberle v. Clark,
89 At1.172 (Conu.Sup.1913),the oourt raid:
"It was suggested upon ths argwaant
that at the time the relator was appolnt-
ed tha raapondaat'sten had not explrad
and so no vacancy existed in the offloa.
vhile the appolntnentwma dmted tha 24th
of June, it recites that the eppoimtmant
la to fill a raoanoy to oaour on tha 1st
of July by th6 axplratlon on thst day of
tha tarm of offloe of the respondent,
Clark. The appolntwnt entloipatea &ho
avant but is not to become effeotlre un-
til the moemy mours. The appolQtlnd
authoritywms not bound to wait until the
raoanay aatually existed before dsalgna-
tlng his appelntee. Rxpedlsn6y and aon-
venienee required that theiappointment
should ba a@ rode thrt whan tha raapon-
dent's tello,ended t+e sueaeaaormight be
qualiflad and prapemd .totake the offloe
and et$ep upon its duties at OMB. Whll9
it is 'wellsettled that an officer or ap-
pointing body olothad with authority to
appoint to a public offloe cannot, ln the
.
HOEI.Elton Gilliland, paqe 6 (V-W/)
absence of express authority, make a valid
\ appointmentthereto for a term whioh is not
to begin eutil after the explratian of the
ten of auoh appointingoffloer or bodr .'
(ditlng oases) it io equally well eatab-
liahad that such officer OP appointingbody
may make a prospeotlvs appointmentto fill
a vacancy vhloh is suFe to ocou~ in a pub-
110 office within the time duPlug whioh the
appointing officer or body, aa.then oonati-
tutbd, will have authority to fill the va-
oancy . . . As the vaoancy in question was
8111~)
to OCCUF dllringthe Qoverno~'s tern of
office,he might, in the santwP which he
adopted, properly make the appointment,in
antioipationof the event.*
Iu the aase of State ox ml..Child v. O'Leary,
66 N.w.264 (mw.aup.18%), the 6ourt -Stated:
I . . . It la the general rule that a
proapeotlv* appointrantto fill a vfmamy
star0to OOO~UPin a public offioe, made by
an offloeti,vho, or a body vhlch, aa then
constituted,is eepowemd to fl1l.a vapan-
cY When it aPlaea, Is, in the abseuco of a
1BW forbidding it, a valid appolotment,and
vests title to the offioe in the appointee.*
The 118th Jndlolal M&riot of Texas
onated by House Bill No.379, Aata 51at
Leglslattme, 1949, oame into existmoe om
October 5, 1949, having failed to seaum
the neceasaPy two-thilds vote of all the
mmnbem elected to the Senate.
The terms or OOuPt pFevlouslyeon-
mencod while Hovard, Martin, and Glessoock
Counties were a part of the 70th Judicial
District will be continued until the ax-
piration of their tenas. The newly ap-
pointed Distriot Judge of the 118th Judl-
ala1 District may sit in all oases heard
duPlng these oontlnuons tePma.
The Court Retporte~for the 118th Ju-
dicial Distriot will receive the same rate
Bon. Elton Gllliland,page 7 (V-927)
Or pay as the,Reporter 0r the 70th Judl-
0101 qistrict rsOeiv6d OLIthe err~0tiv0
date of the Aot.
Although House Bill 379 did not go
into brre0t a8 an emergenay waaura and
the District Judge for the 118th Judloial
District van appointed and a~nfirmad ba-
r0m the erreOtm4 data 0r the dot, there4
is no neoemsit~ for a reappointmentin
order fop raid Judge to qualify roF.Or-
ri0e e
Yours verg truly,
ATTORIES@3RiBRALOF TEXAS
BW:bhnmw BY
Burnall Waldnp &YJ
AssIstant
P
FIBST ACiSISTAl9T
AVQIww '=WiBL
.