THEATTORNEYGENERAL
OFYrExAS

AUSTIN 1%.

TExAe

December 19, 1963

Honorable Joe Resweber County Attorney OpinionNO. 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 shouldbe made in the primaries, and if not, how the nominationmay be made. The question arises because of the fact that the court will not
come into existenceuntil June 1, 1964, after the first primary has already been held on the first Saturday in May.

The 165thDistrict 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 shallbe coextensivewith the limits of Harris County, Texas. Said Courts shall be known, respectively,as the 164th and 165th District Courts; the 164th District Court shallbe effective September 1, 1963, and the 165th District Court shallbe effective June 1, 1964.”

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Section 6 of Chapter 507 provides:

“The Governor shallappointa 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 Electionafter the creation of said DistrictCourts 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 containsan emergency clausewhich recites that "thisAct shall take effect and be in force from and after September 1, 1963.” However, the bill was not passed by the two-thirdsrecord 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 precedinggeneral election, the normal rule Is that nominations for offices tobe filled at the general election must be madeby primary election, upon applications of candidates filed In accordancewith 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 (addedby Acts 58th Leg., R.S. 1963, ch. 424, sec. 88) provldesmethods for making nominations for unexpired termswhere 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 nominationand election arises too late for nominationby ordinaryprocedures, the party may nominateby any method which is sanctionedby part8 usage and is not contrary to law. Gilmorev. 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 165thDistrict Court by primary election, under the general rules applicable to nominations in the primaries. Although the courtwill not come into existence until June 1, 1964,the act creating the court became a law, for the purpose of givingnotice of Its contents,

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on August 23, 1963, 90 days after adjournmentof the session at which It was passed. Pophamv. Patterson,121 Tex. 615, 51 S.W.2d 680 (1932);Andersonv. Penlx, 138 Tex. 596, 161 S.W.2d 455 (1942).

In the Popham case, the second sectionof an act of the Legislature,approved March 20, 1930,which Increased the term of county school superintendentsfrom twoyears to four years,provided that "This act shall take effect January 1, 1931." Section 3 contained an emergency clause providing for Immediate effect,but thebillwas not passed by the vote required to put it into effectas an emergency measure. The question before the courtwas whether county superintendentselected at the general electionIn 1930 received two-year terms or four-year terms. The court held that they received four-year terms, saying:

"Appelleecontends that the act of 1930 cannotbe given effect to extend the terms of county superintendentselected at the November, 1930, election to take officeon January 1, 1931, from two to fouryears, because to do so would be to give such law
a retroactiveeffect and apply Its terms before It became a law. We do not agreewith this contention.

"In construing statutes It Is theduty of the court to ascertain the legislative intent,and, when such intent Is once arrived at, It shouldbe 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 Includesthe caption, the body of theact, and the emergency clause. In this connection
we hold that, even when the emergency clause cannotbe given effectas such, still its provisionsmay be looked to If they aid the court In ascertaining the legislativeIntent.

"Whenwe apply the above rules to the 1930act, supra, it becomes evident that the clause therein, 'ThisAct 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 nothave effect to lengthen terms of office until

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such date. In other words, if the act had not contained the clause just quoted its effectwould have been to lengthen the terms of those already in office from two to fouryears, and would have done away with the election of elective county superintendentsat the November, 1930, election.

"We think that the above construction of the 1930 act Is rendered certainby 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 recordedvote required to put It Into Immediateeffect, but, had the Legislature Intended that the act should not become a law until January 1, 1931, therewould havebeen
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 Interestedwould have had Immediatenotice 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 recordedvote to put it into Immediate effect, thisnotice 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 1930act could not be effectiveas 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 operativeas soon as It does become a law. Since this act became a law, about June 20, 1930, it operated as notice from thatdate forward. This holding Is In entireharmony with the holding In Missouri, K. & T. Ry. Co. v. State, supra.”

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

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July 23, 1941,provided for reorganization of the 30th JudicialDistrict, then composed of Wichita;Archer; Andy Young Counties,byetransferringArcher and Young Counties to other districts, leaving the 30th District to consist of Wichita County only. Section 6 of the act provided that "ThisAct shall take effectand 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 recordvote. The questionbefore 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~generalelections. 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 Legislaturewhich enacted It. Pophamv. Patterson, supra. At that time It became effective, except as to certainmatters which were postponed until a later date. The law gives notice as soon ashitbecomes a law. Popham
v. Patterson, supra. When the provision In regard to the effectivedate is consideredwith the balance of the Act, It Is evident that the Legislatureonly intended thereby to postpone operation of the courts affected until January 1, 1943. The Act also demonstratesan Intention to permit all electedofficers to serve out their terms of office. The act did not Intend that officesnow occupied by officerswhose terms of office expire on January 1, 1943, shallbe filled for termsbeginning on that date by the voters of the countieswhich will not be In the districtwhich suchnew officerswill serve. The effect of our decision Is thatWichita 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

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

terms of office, and parties holding primary electionsmust make their nominations In the primaries. The situation Is similar to that In theAnderson case, except that here the courtwill come Into existence after theprimary election and before the general election, rather than afterboth 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 conventionof the Democratic Party for a new district judgeship. The controversyin that case was betweena nominee sele&ted:byYthestate convention and a nominee selectedby the county convention (thedistrict consistedof only one county), It being taken for granted both by the litigantsand by the court that the new officehad been created 'in sucha fashion that the nominee Is not selected at the regularprimary." The act creating the new court (Acts 53rd Leg., 1st C.S. 1954, ch. 51) provided that the court "shallcome Into existence on September 1, 1954." It was passed at a special session of the Legislaturewhich adjournedon April 13, 1954, and It became a law on July 13, 1954, 90 days after adjournment. In theyear 1954 the firstprimary electionwas held on the fourth Saturday in July, subsequent to the date on which the law became effectiveto give notice of Its contents,but the filing deadline for the primary
was the firstMonday In May. On that deadlinedate the act creating the courthad not become law and thereforewas not effective as notice that the officewas tobe filled at the 1954 general election. Pophamv. Patterson,supra. Consequently, the provisions of th Election code requiring nominationby 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 casewhich shouldbe noticed. On June 1, 1936: t~ea~~mmlsslonersCourt of Bexar Countyadopted
an order redividing the county Into justiceprecincts, to be effective as of January 1, 1937, and provided In the order that the precinct officers shouldbe nominatedand elected in the 1936 elections in accordancewith theprecinctsas defined In the order. The filing deadline for the primaries
was the Saturdaybefore the third Monday In June. Art. 3113, R.C.S. 1925. In an election contestbetween opposing candidates in the 1936 Democraticprimary for nomination to the office of constableof redefined Justice PrecinctNo. 1, the Court of CivilAppeals held that the attemptednomination of a candidate for constable of the redefinedprecinctwas a nullity and that neither candidate couldbe declared the nominee. The court said:

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

"It Is clear fromwhat 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 determinewho may become a candidateor vote in such new districts, It Is attempting to legislate upon a subject overwhich it has no jurisdiction. The Legislature of this state has fixed the qualificationsof candidates for the office of constable,
or any other precinctofficer, article 2927, R.S. 1925,and the commlsslonersl court cannot add to or take from these quallflcatlons.

. . . The Legislature is the supreme legislativepower of the state, and, where an order of the commissioners court conflictswith a proper legislativeact, the order must give way and the act of the Legislature prevail.' 96 S.W.2dat 842.

It 1s readilyapparent that the Brown case reaches
a different result from that reached in At-&?% v. Penlx. Perhans the cases canbe reconciled on the ground that the Brown-case Involvedaction by the commissioners court,whereas thenderson case Involvedan act of the Legislature. Be that as It may, theAnderson 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 electionwill 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

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

give notice of the court’s creation and of the @lectlon of a judgeat the 1964 general election,although the courtwill not come Into existence until June 1, 1964. Candidatesat the 1964 general election for the judgeshipof this court shouldbe nominatedby normal nominating procedures. Partiesholding primaries must nominate their candidatesby 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 THEATTORNEY GENERAL BY: H. Grady Chandler

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