THEATTORNEYGENERAL 

OFYrExAS 

AUSTIN 1%. TExAe 

December 19, 1963 

Honorable Joe Resweber 

County Attorney 

Opinion NO. c-198 

Harris County Re: Method of selecting 

Houston, Texas party nominees for the 

office of Judge of the 

165th District Court 

for the 1964 general 

Dear Sir: election. 

You have requested an opinion on how party 

nominations for the office of Judge of the 165th District 

Court should be made for the general election in 1964. 

More specifically, you wish to know whether the nomination 

by a party holding primary elections should be made in the 

primaries, and if not, how the nomination may be made. The 

question arises because of the fact that the court will not 

come into existence until June 1, 1964, after the first 

primary has already been held on the first Saturday in May. 

The 165th District Court Is created b Chapter 507 

Acts of the 58th Legislature, 1963 (Art. 199(161,165), v.c.sI). 

This act provides for the creation of seven new district 

courts. Three of the courts are created effective September 1, 

1963; one is effective October 1, 1963; one is effective 

February 1, 1964; and two (the 165th for Harris County and 

the 167th for Travis County) are effective June 1, 1964. 

The provision creating the 165th Court reads as follows: 

"Sec. 3. Harris County. 

"(A) There are hereby created In and for 

Harris County, Texas, two (2) additional 

District Courts, the limits each of which 

shall be coextensive with the limits of 

Harris County, Texas. Said Courts shall be 

known, respectively, as the 164th and 165th 

District Courts; the 164th District Court 

shall be effective September 1, 1963, and 

the 165th District Court shall be effective 

June 1, 1964.” 

-952- 
Hon. Joe Resweber, page 2 (c-198 ) 

Section 6 of Chapter 507 provides: 

“The Governor shall appoint a suitable 

person as Judge, respectively, of each of 

said District Courts herein created, each 

of whom shall hold office until the next 

General Election and until his successor 

has been duly elected and qualified. At 

the first General Election after the 

creation of said District Courts provided 

for herein the Judge of each of said Courts 

shall be elected for a term of four (4) 

years. . . .II 

Section 8 of Chapter 507 contains an emergency 

clause which recites that "this Act shall take effect and 

be in force from and after September 1, 1963.” However, 

the bill was not passed by the two-thirds record vote In 

each House which is necessary to put the emergency clause 

into effect. 

For parties which cast more than 200,000 votes 

for Governor In the preceding general election, the normal 

rule Is that nominations for offices to be filled at the 

general election must be made by primary election, upon 

applications of candidates filed In accordance with Article 

13.12 of the Texas Election Code. V.A.T.S. Election Code, 

Arts. 6.01 and 13.02. This Is also true for parties under 

200,000 which choose to hold primaries. V.A.T.S. Election 

Code, Art. 13.45. Article 13.12a (added by Acts 58th Leg., 

R.S. 1963, ch. 424, sec. 88) p rovldes methods for making 

nominations for unexpired terms where the vacancy necessitating the election arises too late for selecting a nominee 

by the ordinary primary procedures. In other situations 

where the need for the nomination and election arises too 

late for nomination by ordinary procedures, the party may 

nominate by any method which is sanctioned by part 

8 

usage 

and is not contrary to law. Gilmore v. Waples, 10 Tex. 

167, 188 S.W. 1037 (1916); Kllday v. Germany, 139 Tex. 380, 

163 S.W.2d 184 (1942); Williams v. Huntress, 153 Tex. 443, 

272 S.W.2d 87 (1954). 

We are of the opinion that any party which is 

holding primary elections In 1964 must nominate Its candidate 

for the office of Judge of the 165th District Court by primary 

election, under the general rules applicable to nominations 

in the primaries. Although the court will not come into 

existence until June 1, 1964, the act creating the court 

became a law, for the purpose of giving notice of Its contents, 

-953- 
Hon. Joe Resweber, page 3 (C- 198) 

on August 23, 1963, 90 days after adjournment of the session 

at which It was passed. Popham v. Patterson, 121 Tex. 615, 

51 S.W.2d 680 (1932); Anderson v. Penlx, 138 Tex. 596, 

161 S.W.2d 455 (1942). 

In the Popham case, the second section of an act 

of the Legislature, approved March 20, 1930, which Increased 

the term of county school superintendents from two years 

to four years, provided that "This act shall take effect 

January 1, 1931." Section 3 contained an emergency clause 

providing for Immediate effect, but the bill was not passed 

by the vote required to put it into effect as an emergency 

measure. The question before the court was whether county 

superintendents elected at the general election In 1930 

received two-year terms or four-year terms. The court held 

that they received four-year terms, saying: 

"Appellee contends that the act of 1930 

cannot be given effect to extend the terms 

of county superintendents elected at the 

November, 1930, election to take office on 

January 1, 1931, from two to four years, 

because to do so would be to give such law 

a retroactive effect and apply Its terms 

before It became a law. We do not agree with 

this contention. 

"In construing statutes It Is the duty 

of the court to ascertain the legislative 

intent, and, when such intent Is once arrived 

at, It should be given effect; in fact, such 

Intent is the law. In determining the leglslatlve Intent, the court should not look 

alone to any one phrase, clause, or sentence 

of the act, but to the entire act; and this 

Includes the caption, the body of the act, 

and the emergency clause. In this connection 

we hold that, even when the emergency clause 

cannot be given effect as such, still its 

provisions may be looked to If they aid the 

court In ascertaining the legislative Intent. 

"When we apply the above rules to the 

1930 act, supra, it becomes evident that the 

clause therein, 'This Act shall take effect 

January 1, 1931,' does not mean that the 

act did not become a law until January 1, 

1931, but merely means that It did not have 

effect to lengthen terms of office until 

-954- 
Hon. Joe Resweber, page 4 (C-198) 

P 

such date. In other words, if the act 

had not contained the clause just quoted 

its effect would have been to lengthen 

the terms of those already in office 

from two to four years, and would have 

done away with the election of elective 

county superintendents at the November, 

1930, election. 

"We think that the above construction 

of the 1930 act Is rendered certain by the 

terms of Its emergency clause, which provides that It shall take effect from and 

after Its passage. It Is true that the 

act did not pass with the recorded vote 

required to put It Into Immediate effect, 

but, had the Legislature Intended that 

the act should not become a law until 

January 1, 1931, there would have been 

no purpose In having an emergency clause 

at all. Had the act passed by the recorded 

vote required to put It Into Immediate 

effect, all persons Interested would have 

had Immediate notice that county superintendents elected in November, 1930, to 

take office January 1, 1931, would hold 

a four-year term. As the act did not 

get the required recorded vote to put 

it into Immediate effect, this notice 

did not become operative until the act 

became a law, which was 90 days after the 

adjournment of the Legislature or about 

June 20, 1930. 

“Appellee contends that the 1930 act 

could not be effective as notice until It 

became a law, citing Missouri, K. & T. Ry. 

Co. v. State, 100 Tex. 420, 100 S.W. 766. 

We agree with this contention. No act of 

the Legislature Is operative as notice 

until it becomes a law, but it Is so 

operative as soon as It does become a law. 

Since this act became a law, about June 20, 

1930, it operated as notice from that date 

forward. This holding Is In entire harmony 

with the holding In Missouri, K. & T. Ry. 

Co. v. State, supra.” 

In Anderson v. Penix, supra, an act approved on 

-955- 
. . \ 

Hon. Joe Resweber, page 5 (C-198) 

July 23, 1941, provided for reorganization of the 30th 

Judicial District, then composed of Wichita;Archer; Andy 

Young Counties, bye transferring Archer and Young Counties 

to other districts, leaving the 30th District to consist 

of Wichita County only. Section 6 of the act provided that 

"This Act shall take effect and be In operation on and 

after January 1, 1943." Section 8 was an emergency clause 

providing for Immediate effect, but the act was not passed 

with a two-thirds record vote. The question before the 

court was whether the voters of Young and Archer Counties 

should participate In the nomination and election of the 

district attorney for the 30th district at the 1942 primary 

and ~general elections. The court held that the office 

should be filled by the voters of Wichita County only, 

saying: 

I, The Act became a law ninety 

days afier ihe adjournment of the Legislature which enacted It. Popham v. Patterson, 

supra. At that time It became effective, 

except as to certain matters which were 

postponed until a later date. The law gives 

notice as soon as hit becomes a law. Popham 

v. Patterson, supra. When the provision 

In regard to the effective date is considered with the balance of the Act, It Is 

evident that the Legislature only intended 

thereby to postpone operation of the 

courts affected until January 1, 1943. 

The Act also demonstrates an Intention to 

permit all elected officers to serve out 

their terms of office. The act did not 

Intend that offices now occupied by 

officers whose terms of office expire on 

January 1, 1943, shall be filled for 

terms beginning on that date by the voters 

of the counties which will not be In the 

district which such new officers will serve. 

The effect of our decision Is that Wichita 

County alone will elect the district 

attorney for the 30th district. . . .n 

While operation of the 165th District Court Is 

postponed until June 1, 1964, the act creating the court 

became effective to give notice of its creation and of the 

election of a judge at the general election in 1964 long 

before the deadline for candidates to file in the 1964 

primary elections. Under these circumstances, we are 

of the opinion that nominations for the office will be 

governed by the normal rules applicable to regular full 

-956- 
r -. 

Hon. Joe Resweber, page 6 (C-198 ) 

terms of office, and parties holding primary elections must 

make their nominations In the primaries. The situation Is 

similar to that In the Anderson case, except that here the 

court will come Into existence after the primary election 

and before the general election, rather than after both 

the primary and the general election. It Is dlstlnguishable 

from the situation In Williams v. Huntress, 153 Tex. 443, 

272 S.W.2d 87 (1954), wherein the Supreme Court upheld a 

nomination made by the state convention of the Democratic 

Party for a new district judgeship. The controversy in 

that case was between a nominee sele&ted:byYthe state 

convention and a nominee selected by the county convention 

(the district consisted of only one county), It being 

taken for granted both by the litigants and by the court 

that the new office had been created 'in such a fashion 

that the nominee Is not selected at the regular primary." 

The act creating the new court (Acts 53rd Leg., 1st C.S. 

1954, ch. 51) provided that the court "shall come Into 

existence on September 1, 1954." It was passed at a 

special session of the Legislature which adjourned on 

April 13, 1954, and It became a law on July 13, 1954, 90 

days after adjournment. In the year 1954 the first primary 

election was held on the fourth Saturday in July, subsequent 

to the date on which the law became effective to give notice 

of Its contents, but the filing deadline for the primary 

was the first Monday In May. On that deadline date the act 

creating the court had not become law and therefore was not 

effective as notice that the office was to be filled at the 

1954 general election. Popham v. Patterson, supra. Consequently, the provisions of th Election code requiring 

nomination by primary election &d not a ply. 

Smith, 314 S.W.2d 631 (Tex.Clv.App. 1958 P 

Meyers v. 

. 

Brown v. Meeks, 96 S.W.2d 839 (Tex.Civ.App. 1936, 

error dism.) I ther case which should be noticed. On 

June 1, 1936: t~ea~~mmlssloners Court of Bexar County adopted 

an order redividing the county Into justice precincts, to be 

effective as of January 1, 1937, and provided In the order 

that the precinct officers should be nominated and elected 

in the 1936 elections in accordance with the precincts as 

defined In the order. The filing deadline for the primaries 

was the Saturday before the third Monday In June. Art. 3113, 

R.C.S. 1925. In an election contest between opposing 

candidates in the 1936 Democratic primary for nomination to 

the office of constable of redefined Justice Precinct No. 1, 

the Court of Civil Appeals held that the attempted nomination 

of a candidate for constable of the redefined precinct was a 

nullity and that neither candidate could be declared the 

nominee. The court said: 

-957- 
I. , ,. 

. ,, 

Hon. Joe Resweber, page 7 (C-198 ) 

"It Is clear from what has been said 

above that,'under the plain provisions of 

the election statutes, persons cannot 

become candidates for an office that does 

not exist, nor can voters cast their 

ballots for such candidates." 96 S.W.2d at 

843. 

At another point the court said: 

'I. . .@$7hen the commlsslonerst 

court attemp s to determine who may 

become a candidate or vote in such new 

districts, It Is attempting to legislate 

upon a subject over which it has no 

jurisdiction. The Legislature of this 

state has fixed the qualifications of 

candidates for the office of constable, 

or any other precinct officer, article 

2927, R.S. 1925, and the commlsslonersl 

court cannot add to or take from these 

quallflcatlons. . . . The Legislature 

is the supreme legislative power of the 

state, and, where an order of the 

commissioners court conflicts with a 

proper legislative act, the order must 

give way and the act of the Legislature 

prevail.' 96 S.W.2d at 842. 

It 1s readily apparent that the Brown case reaches 

a different result from that reached in At-&?% v. Penlx. 

Perhans the cases can be reconciled on the ground that the 

Brown-case Involved action by the commissioners court, whereas 

thenderson case Involved an act of the Legislature. Be 

that as It may, the Anderson case was decided by the Supreme 

Court subsequent to the decision In the Brown case, and we 

therefore feel no hesitancy in followlng%%?later decision. 

It may also be observed that the term of office for 

which the election will be held In 1964 Is a full four-year 

term. Sec. 6 of Chapter 507, supra; Eades v. Drake, 160 Tex. 

381, 332 S.W.2d 553 (1960). Rules as to wnetner an election 

to fill an unexpired term may be held before occurrence of 

the vacancy are not In point. 

The Act creating the 165th District Court 

became effe~ctive on August 23, 1963, to 

SUMMARY 

-958 - 
,” . . L, 

Hon. Joe Resweber, page 8 (C-198) 

give notice of the court’s creation and 

of the @lectlon of a judge at the 1964 

general election, although the court will 

not come Into existence until June 1, 

1964. Candidates at the 1964 general 

election for the judgeship of this court 

should be nominated by normal nominating 

procedures. Parties holding primaries 

must nominate their candidates by primary 

election. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

Mary Ii. Wall 

Assistant 

MKw:sj 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

V. F. Taylor 

Ben Harrison 

Howard Mays 

Jerry Brock 

APPROVED FOR THE ATTORNEY GENERAL 

BY: H. Grady Chandler 

-959-