Honorable Joe L. Cox Opinion No. WW-197 

District Attorney 

64th Judicial District Re: Effective date of H;B. 

Hale County Courthouse 438, 55th Legislature, 

Plainview, Texas concerning the reorganization of the 64th 

Judicial District, and 

creating the 154th 

Dear Mr. Cox: Judicial District. 

You have requested an opinion as to the effective date of House Bill No. 438, page 1476, Acts 

1957, 55th Legislature, Regular Session. 

House Bill No. 438 in effect amends subdlvisjon 

64 of Article 199, Vernon's Civil Statutes, so as to 

create an additional judicial district, the 154th; 

out of the six counties now composing the 64th Judicial District. Under the law now in effect (Acts 

1947, 50th Legislature), the 64th Judicial District 

is composed of the Counties of Hale, Lamb, Swisher, 

Baile 

%' 

Parmer and Castro. Under House Bill No. 438, 

the 6 th Judicial District will be composed of Hale, 

Swisher, and Castro Counties; the 154th Judicial 

District will be composed of Lamb, Bailey and Parmer 

Counties. House Bill No. 438 also provides that the 

present judge of the 64th District Court will become 

the judge of the new 154th District Court; while the 

district attorney of the 64th Judicial District will 

remain as the district attorney of the 64th Judicial 

District. The Gover..,r* will appoint a judge for the 

64th District Court, and a district attorney for the 

new 154th Judicial District. 

Section 12 of House Bill No. 438 states: 

"The effective date of this Act shall 

be September 1, 1957." 

From the brief submitted by you, it appears 

that the facts involved are stated in the three 

following paragraphs: 
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Hon. Joe L. Cox, Page 2 (ww-197) 

If House Bill No. 438 should become effective on 

September 1, 1957, then Swisher County in the 64th Dlstrlct as reconstituted would have only one term of 

court in 1957, that is, the March term which was convened under the present law (Acts 19471 for the new 

terms provided for Swisher County will commence on the 

first Monday in February and August, both of which 

are prior to the effective date of House Bill No. 438, 

as provided in the Bill. The September term, as provided by the present law (Acts 1947), would be abolished. 

Likewise, in the new 154th District, Bailey 

County would have only one term of court In 1957, the 

March term; since its November term would be abolished 

by the bill, and its new terms under House Bill No. 438 

also occur in February and August, prior to September 1, 

1957. 

Hale County, In the 64th District, has already 

convened two terms of court, in January and July. 

Castro County, in the 64th District, has had one term, 

which was convened in May, and while Its September 

term would be abolished, the bill would give it,a 

term in October, which would make the required two 

terms. Lamb County, in the 154th District, has 

already convened one term of court In February, and 

will have one more term in August, all prior to September 1, 1957. Parmer County, in the 154th District, 

has had one term of court under the 64th District 

Court in April, and under the bill would have a 

September term under the 154th District Court. 

The questions to be decided are: 

1. What is the effective date of the Act 

creating the new 154th'District Court, and changing 

the 64th District Court so as to take away from it 

the Counties of Hale, Swisher and Castro? 

2. Since Swisher County in the 64th District 

and Bailey County in the new 154th District will each 

have only one term of court during the calendar year 

under the terms of House Bill 438, what are the dates 

for the terms of Court in said two counties in order 

that each court will have two terms of court during 

the calendar year 195'7? 

Article V, Section 7 of the Constitution Of 

Texas provides in part as follows: 
Hon. Joe L. Cox, Page 3 ( ww-197 ) 

"The State shall be divided into as 

many judicial districts as may now or 

hereafter be provided by law, which may 

be increased or diminished by law. For 

each district there shall be elected . . . 

a Judge, . 0 . He shall hold the regular 

terms of his Court at the County Seat of 

each County in his district at least twice 

in each year in such manner as may be prescribed by law. The Legislature shall 

have power by General or Special Laws to 

make such provisions concerning the terms 

or sessions of each Court as it may deem 

necessary." (Emphasis added) 

Section 1, Article 1919, V.A.C.S. reads in part 

as follows: 

"All district courts in this State, 

. . . whenever and however created, shall 

hold at least two (2) terms of court per 

year in each county wherein they sit . . ." 

Numerous authorities are cited by you which 

construed Acts changing the terms of various district 

courts. All of these decisions are of the same tenure 

and holding as the following statement contained in 

11 Tex. Jur. p* 803: 

as set 

"When a law, if construed as operative 

from the date it became effective, would 

deprive a court of one of the two terms 

guaranteed, it is uniformly held that the 

Court should operate under the former law 

until such time as the new enactment may 

validly go into effect. This does not mean 

that there may not be a valid provision 

for more than two terms of the District 

Court, but merely that there must be at 

least two." 

Among the decisions cited by you and which hold 

out above are the following: 

Ex parte Murphy 27 Tex. Crim. 492, 11 S.W. 

487 (Texas Court of Apieals, 1889); Nobles v. State, 

57 Tex. Crim. 307, 123 S.W. 126 (1909); Ex arte 

%%$% z: ~"xcRf~~~d~3:C13'~~x~':61~1~'5 
Hon. Joe L. Cox, Page 4 (ww-197) 

Edgar v. State, 96 Tex, Crim. 1 

244 

255 S.W. 748 

Engleman v. Anderson, et al, S.W. 650 (Civ. 

App. 1922, error ref.); Ex parte Curry, 156 Tex. Grim. 

499, 244 S.W. 2d 204 (1951). I 

It will be noticed that none of these cases 

involves the effective date of an Act creating a Court 

which did not provide two terms of court during the 

calendar year that the court was created and became 

effective. Such cited cases involve the matter of 

changing the terms of district courts and the effect 

of such changes where the county was deprived of two 

terms of court. 

As we view the matter, there is quite a difference 

between (1) an Act which changes the terms of a partlcular court, and (2) an Act which creates a new court 

and provides for the terms of such court. It is to be 

noticed that Section 1 of the Act provides that after 

the effective date the 154th District is created to 

be composed of the Counties of Lamb, Bailey and Parmer, 

and that Section 2 provides that after the effective 

date of the Act, the 64th District is to be composed 

of the Counties of Hale, Swisher and Castro. It is to 

be noticed from these sections that the 154th District 

is "created" while the effect as to the 64th District 

1s merely to drop Lamb, Bailey and Parmer Counties from 

that District, or as stated in the caption and body of 

the Act, it is "reorganized". 

The Legislature may create a court and provide 

for its effective date although the Act creating the 

court may not provide for any term of court. (As we 

will see later, the Judge may call a special term at 

any time). In St. Louis S.W. Ry. Co. of Texas v. 

m, 98 Tex. 480 ti5 S.W. 786 (1905) the court construed an Act of ihe Legislature in which a new court 

was created, and placed Delta County in this new 

District and specifically provided that said court 

should hold only one term of court each year in Delta 

(Delta County was also in another District 

%??had two terms each year in Delta County). An 

attack was made on the validity of this court because 

the Act creating it did not provide for two terms 

each year. In upholding the validity of the Act, 

the Court said: 

"The provision most relied on is that 

fixing a time for the holding of only one 

term of the court in Delta County, which 
Hon. Joe L. Cox, Page 5 (w-197) 

. 

is assailed as being in conflict with section 

7, art. 4, of the Constitution. That section 

provides for the division of the state into 

districts, and the selection of a judge, 

whose qualifications and salary are fixed, 

and who is required to 'hold the regular 

terms of his court at the county seat of each 

county in his district at least twice In 

each year in such manner as may be prescribed 

by law.' It also empowers the Legislature to 

provide for the holding of more than two regular terms per year and of special terms. Much 

that is essential to the existence of the 

courts Is thus prescribed by the Constitution 

itself, while some of the things needed to 

bring them into active operation are to be 

provided by the Legislature. The districts 

must be formed and the times for holding the 

courts prescribed by legislation, and 

without these there is no court authorized 

to exercise the jurisdiction defined by the 

Constitution. The contention here is that, 

although the Legislature has defined the 

territory to compose the district, and has 

fixed times for holding the court twice a 

year in two of the counties, and once a 

year in the third, it has not done enough 

to authorize the appointment of a judge and 

the holding of court, because of the omission 

to provide for a second term in each year in 

the third county. To us, this contention 

seems to mistake the nature of the provision 

for two terms, by treating it as an inhibition of any provision for one term. As terms 

of courts cannot be held until times are 

prescribed by law, it is plainly the duty of 

the Legislature to make such provision. But 

this is an affirmative command, and not a prohibitory provision. The courts have no power 

to enforce the performance of this duty in 

whole, and, in our judgment, have as little 

right to strike down, as unauthorized, a performance of it in part, merely because the 

Legislature has not gone as far as the Constitution may require. When the Legislature 

has provided for one term in a county, it has 

not done a thing prohibited or unauthorized 

by the Constitution, but has done a part of 

that which the Constitution commands it to do. 
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Hon. Joe L. Cox, Page 6 (ww-197) 

If there had been no judicial districts 

when the Constitution was adopted, and the 

Legislature, In forming them, had provided 

for only one term of court in each county 

in the state, can it be true that the people 

would have been deprived of courts because 

the provision made stopped short of that 

intended by the Constitution? If the Legislature in session in January should form a 

new district or add a county to an existing 

district, and provide for a term of court in 

March, and, after that had been held, the 

Legislature, being still in session, should 

further provide for another term in the same 

county in September, we suppose no one would 

say that the courts could not legally be held 

under this authority, or that its proceedings 

would be void. Yet to that proposition we 

would inevitably be led by adopting the contention that, to the construction of a valid 

district and a lawful court, antecedent 

provision for two terms a year in each county 

of the district is essential. If the Legislature, in forming a district, by oversight 

fails to provide for one of the regular terms 

in one of the counties, or, in attempting to 

so provide, employs such uncertain language 

that the time cannot be legally ascertained, 

would it not be unreasonable in the extreme 

to hold that the whole act, the court, and all 

of its proceedings are to be treated as if 

they had never been? We cannot yield our 

assent to a doctrine leading to such consequences. In our opinion, provision made by 

the Legislature for one term of a court a 

year Is within the authority conferred and 

is a partial performance of the duty imposed 

by the Constitution; and, if it be true that 

this is not the full measure of such duty, 

that does not authorize the courts to say that 

it is not within the authority. . . . We 

are of the opinion that the statute organizing 

the court a quo is constitutional in its provisions establishing the court in all of the 

three counties, and that the court had jurisdiction to try this cause and render the judgment appealed from, which makes it necessary 

that we consider the 

of the writ of error. 

Grounds urged in support 
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Hon. Joe L. Cox, Page 7 (ww-197) 

Practically every Legislature creates one or 

more District Courts and In each Act in nearly every 

instance provides that it shall become effective on 

September lst, and in most Instances only one term of 

court is provided for the remainder of the calendar 

year during which the court was created. For example, 

in House Bill 81 of the Regular Session of the 55th 

Legislature page 721, Acts of 1957, a Court was created 

for Travis County effective September 1, 1957. The Act 

provides for four terms each year beginning on the first 

Mondays of January, April, July and October. We see 

that this new court will have only one term of court 

during the calendar year 1957. Can it be said that the 

creation of this Court will not have effect until the 

first Monday in January merely because it can only have 

one term of court during the calendar year 1957? We 

believe not. The same is true with the new 154th District Court created for three counties which have been 

taken from the 64th District and placed in the new 19th 

District. 

In addition to the above, the caption of the Act 

provides an effective date. Section 12 of the Act provides that the effective date is September 1, 1957. 

The so-called emergency clause only calls for suspending 

the three day rule and does not provide for immediate 

effect under an emergency, but is to be in effect 

after its effective date as provided in the Act. 

In view of the above, it is our opinion that the 

effective date creating the 154th District and changing 

or reorganizing the 64th District as provided in the 

Act underquestion is September 1, 1957. 

The next matter to be considered is the effective 

date of the terms of court in each district. The facts 

pertaining to the terms that will exist if the Act is 

effective September 1st have already been noticed. 

Only Swisher County in the 64th District and Bailey 

County in the 154th District present any question as 

to when the terms of court should be held. Since 

Swisher and Bailey Counties have no terms during the 

calendar year 1957 after September 1st under the new 

Act, we believe that if it is desired to hold terms of 

court in those two counties after September 1st and 

before January, by analogy the rule above set out pertaining to the statutes changing the terms of court may 

well be followed; thatis, each court may operate under 

the former law as to the terms of court until such time 

as they can have two terms each year under the new Act. 
Hon. Joe L. Cox, page 8 (ww-197) 

We say this for the reason that the effect of the new Act 

is mere1 to change the terms of court In Swisher County 

in the 6 % th District, and since Bailey County is not in 

any District other than the 154th under the new Act, we 

believe that it can logically be said that the practical 

effect of the new Act is also to change the terms of 

court in Bailey County. 

We realize, however, that this is a difficult 

question, and we suggest that if it should be desired 

to hold a term in Bailey County after September 1st and 

before the first Monday in February, the court could 

meet on the first Monday in November as provided by the 

old law, and also call a special term to coincide with 

the old term of the first Monday in November. (Article 

1920 V.A.C.S. authorizes the calling of special terms). 

If this is done, then any action taken by the court should 

be legal. If the old term should not be valid, the 

special term will certainly be valid. 

As to Swisher County in the 64th District, the 

court can follow the same procedure by having a regular 

term the first Monday in September and by calling a special term to coincide with It. 

This is our answer to the second question. 

SUMMARY 

The effective date of House Bill 438, 

55th Legislature creating the 154th 

Judicial District and reorganizing the 

64th District is September 1, 1957. 

In having terms of court in Swisher and 

Bailey Counties during the calendar year 

of 1957, the old law as to terms of Court 

in those Counties should be followed and 

special terms should be called to coincide with such regular term. 

Yours very truly, 

i 

OPINION COMMIT7 

James N. Ludlun 

HGC:jas 

4PPROVED 

WILL WILSON 

Attorney General of Texas 

FEE 

1, mm. 

BY 

REVIEWED FOR THE 

ATTORNEY GENERAL BY: 

Geo. P. Blackburn