HonorableJoe L. Cox OpinionNo. WW-197

DistrictAttorney 64th Judicial District Re: Effective date of H;B. Hale County Courthouse 438, 55thLegislature, Plainview, Texas concerning the reorganizationof the 64th JudicialDistrict, and creating the 154th Dear Mr. Cox: Judicial District.

You have requestedan 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 createan additional judicialdistrict, the 154th; out of the six countiesnow 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 composedof 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 Districtwill 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 JudicialDistrict.

Section 12 of House Bill No. 438 states:

"Theeffective date of thisAct shall be September 1, 1957."

From the brief submittedby you, it appears that the facts involvedare stated in the three followingparagraphs:” -

-. .

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

If House Bill No. 438 shouldbecome effective on September 1, 1957, then Swisher County in the 64thDlstrlct as reconstitutedwould have only one term of court in 1957, that is, theMarch term which was convenedunder thepresent law (Acts 19471 for the new termsprovided for Swisher Countywill commenceon the firstMonday 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 thepresent law (Acts 1947),would be abolished.

Likewise, in the new 154thDistrict,Bailey Countywould have only one term of court In 1957, the March term; since itsNovember termwould be abolished by the bill, and its new termsunder House Bill No. 438 also occur in February and August,prior to September 1, 1957.

Hale County, In the 64thDistrict,has already convened two terms of court, in January and July. Castro County, in the 64thDistrict, 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 wouldmake the required two terms. Lamb County, in the 154thDistrict, has already convenedone term of court In February,and will have onemore term in August, all prior to September 1, 1957. Parmer County, in the 154th District, has had one term of court under the 64thDistrict 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 effectivedate of the Act creating the new 154th'DistrictCourt, 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 calendaryear under the terms of House Bill 438, what are the dates for the terms of Court in said two counties in order that each courtwill have two terms of court during the calendaryear 195'7?

ArticleV, Section 7 of the ConstitutionOf Texas provides in part as follows:Hon. Joe L. Cox, Page 3 ( ww-197)

"TheState shallbe divided into as many judicialdistricts as may now or hereafterbe provided by law,whichmay be increasedor diminishedby law. For each district there shall be elected

. . . a Judge,

. 0

.He shallhold the regular terms of his Court at the County Seat of each County in his district at least twice in each year in suchmanner as may be prescribedby law. The Legislature shall have power by General or Special Laws to make suchprovisions concerning the terms
or sessions of each Court as itmay deem necessary." (Emphasisadded)

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

"Alldistrict courts in this State,

. . .whenever and however created, shall hold at least two (2) terms of courtper year in each countywherein they sit

. . ."

Numerous authoritiesare cited by you which construedActs changing the terms of various district courts. All of these decisionsare of the same tenure and holding as the following statement contained in 11 Tex. Jur. p* 803:

as set "Whena law, if construedas operative

from the date it became effective,would deprive a court of one of the two terms guaranteed, it is uniformlyheld that the Court should operate under the former law until such time as the new enactmentmay validly go into effect. This does not mean that theremay not be a validprovision formore than two terms of the District Court,but merely that theremust be at least two."

Among the decisions citedby you and which hold out above are the following:

Ex parte Murphy 27 Tex. Crim. 492, 11 S.W. 487 (TexasCourt 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~'5Hon. 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 creatinga Court which did not provide two terms of court during the calendaryear that the courtwas createdand became effective. Such cited cases involve thematter of changing the terms of district courts and the effect of such changeswhere the countywas deprived of two terms of court.

As we view thematter, there is quite a difference between (1)an Act which changes the terms of a partlcular court,and (2)an Act which createsa new court and provides for the terms of such court. It is to be noticed that Section 1 of theAct provides that after the effective date the 154th District is created to be composedof the Counties of Lamb, Bailey and Parmer, and that Section 2 provides that after the effective date of the Act, the 64thDistrict is to be composed of the Counties of Hale, Swisher and Castro. It is to be noticed from these sections that the 154thDistrict is "created"while the effect as to the 64thDistrict 1smerely 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 Legislaturemay createa court and provide for its effective date although the Act creating the courtmay not provide for any term of court. (Aswe 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 thisnew District and specificallyprovided that said court should hold only one term of court each year in Delta

(DeltaCountywas also in another District %??had two terms each year in Delta County). An attack was made on the validity of this courtbecause the Act creating it did not provide for two terms each year. In upholding the validity of the Act, the Court said:

"Theprovisionmost relied on is that fixing a time for the holding of only one term of the court in Delta County,whichHon. Joe L. Cox, Page 5 (w-197)

. is assailed as being in conflictwith 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 qualificationsand salary are fixed, and who is required to 'holdthe regular terms of his court at the county seat of each county in his district at least twice In each year in suchmanner as may be prescribed by law.' It also empowers the Legislature to provide for the holding of more than two regular termsper year and of special terms. Much that is essential to the existence of the courts Is thusprescribedby the Constitution itself,while some of the thingsneeded to bring them into active operation are to be provided by the Legislature. The districts must be formed and the times for holding the courtsprescribed by legislation,and without these there is no court authorized to exercise the jurisdictiondefinedby the Constitution. The contentionhere is that, although the Legislaturehas 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 tomistake the nature of theprovision for two terms,by treating it as an inhibition of any provision for one term. As terms of courts

cannotbe held until times are prescribedby law, it is plainly the duty of the Legislature tomake such provision. But this is an affirmative command,and not a prohibitoryprovision. The courtshave 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 Legislaturehas not gone as far as the Constitutionmay require. When the Legislature has provided for one term in a county, it has not done a thingprohibited or unauthorized by the Constitution,but has done a part of thatwhich the Constitutioncommands it to do.- -. .

Hon. Joe L. Cox, Page 6 (ww-197)

If there had been no judicialdistricts when the Constitutionwas 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 courtsbecause theprovisionmade stopped short of that intendedby 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 furtherprovide for another term in the same county in September,we supposeno one would say that the courts could not legallybe held under this authority,or that itsproceedings would be void. Yet to thatpropositionwe would inevitablybe led by adopting the contention that, to the constructionof 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 cannotbe legallyascertained, would it not be unreasonable in the extreme to hold that the whole act, the court,and all of itsproceedings are to be treatedas if they had never been? We cannotyield our assent to a doctrine leading to such consequences. In our opinion,provisionmade by the Legislature for one term of a court a year Is within the authority conferredand is a partial performance of the duty imposed by the Constitution;and, if it be true that this is not the fullmeasure 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 constitutionalin itsprovisions establishing the court in all of the three counties,and that the courthad jurisdiction to try this cause and render the judgment appealed from, whichmakes it necessary that we consider the of thewrit of error. Grounds urged in support. . .- -, .

Hon. Joe L. Cox, Page 7 (ww-197)

Practically every Legislature creates one or more District Courts and In each Act in nearly every instanceprovides that it shall become effective on September lst, and inmost Instancesonly one term of court is provided for the remainder of the calendar year duringwhich the courtwas created. For example, in House Bill 81 of the Regular Session of the 55th Legislaturepage 721, Acts of 1957, a Courtwas 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 thisnew courtwill have only one term of court during the calendaryear 1957. Can it be said that the creation of this Courtwill not have effect until the first Monday in Januarymerely because it can only have
one term of court during the calendaryear 1957? We believe not. The same is truewith the new 154th District Court created for three countieswhich 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 effectivedate. Section 12 of the Act provides that the effective date is September 1, 1957. The so-calledemergency 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 effectivedate as provided in the Act.

In view of the above, it is our opinion that the effective date creating the 154thDistrict and changing
or reorganizing the 64thDistrict as provided in the Act underquestion is September 1, 1957.

The nextmatter to be considered is the effective date of the terms of court in each district. The facts pertaining to the terms thatwill exist if the Act is effectiveSeptember 1st have already been noticed. Only Swisher County in the 64thDistrict and Bailey County in the 154th Districtpresent any questionas to when the terms of court should be held. Since Swisher and Bailey Countieshave no terms during the calendaryear 1957 after September 1st under the new Act, we believe that if it is desired to hold terms of court in those two countiesafter September 1st and before January, by analogy the rule above set out pertaining to the statutes changing the terms of courtmay well be followed; thatis, each courtmay operateunder the former law as to the terms of courtuntil 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 ismere1 to change the terms of court In Swisher County in the 6%thDistrict, and since Bailey County is not in any District other than the 154th under the new Act, we believe that it can logicallybe said that thepractical 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 firstMonday in February, the court could meet on the firstMonday inNovember as provided by the old law, and also call a special term to coincidewith the old term of the firstMonday in November. (Article 1920V.A.C.S. authorizes the callingof special terms). If this is done, then any action takenby the court should be legal. If the old term should not be valid, the special term will certainlybe valid.

As to Swisher County in the 64th District, the court can follow the sameprocedure by having a regular term the firstMonday in September and by calling a special term to coincidewith It.

This is our answer to the second question.

SUMMARY

The effectivedate 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 Countiesduring the calendaryear of 1957, the old law as to terms of Court in those Counties should be followedand special terms should be called to coincidewith 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