C 

THEATJYORNEYGENERAL 

OF TEXAS 

AUSTIN. TEXAS 

ootober 10, 1949 

Hon. Elton ffilllland op1niw Ho. v-927 

C?tupty Attorrhey 

Iknierd county Be: Several qmstlanr oonBig spying, Texer oemi8q the or anlzation OS thQ'~ll 8 th ~~ 

Beer Hr. billiland: Ju?iol~~l M&riot. 

Tow request zwlatlag to Home Bill Ho. 379, 

A&a of the 51st Legislature, 1949, whloh protide for 

the orsatim of tha 118th Juddioial District aourt of 

Texas oomposed of Howard, Ilartin,and fflassoook Counties, 

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? 

sulx4cquent1you ask: 

4. ISa7 an lndiotment presented 'in the 70th Judioial 

Distriot be made the subjeot of a trial In the 118th Judioial Blatriot? 

5. Vi11 the appointire Dlrtriot 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, fflesscook ard Hartin. Said Dlstlllot Cotart 

shall be known au the 118th Judiolal District. 

"SQQ. 7. The tesms of said 118th J&loial 

Court shall be a8 follow~~r 

"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 (tlasaoook ou the firat Monday in September and on the flrat &or&lay in February. 

"In the Couuty of lartln on the first Monday 

in Oatober and the first #Ionday In 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 beginning of the next auooeeddlng ten thereIn. 

'sea. 8. Immediately upon 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. lie ahall hold office aa suoh Judge 

until the next general ale&Ion. . . . 

*sea. ga Immadiately upon the passage of thlr 

law the (ioremor shall appoint a suitable parson having 

817 the qualifioetiona provided by the Constitution and 

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 before this Aot take8 effeot, fualudlng re6oguizanoea end 

bonds returnable to the blatriot Court of any of the 

Countlaa of the 70th Judicial Dlstrlot, shall be oonsldered aa returnable to said Couth in aooordauoe with 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 

respeotire Counties, 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, Constitution of Texes provides: 

'If0 law p8ded by t@e Leglal8ture 

. . ., aball teke effeot or go into fore0 

uutll ntuety days after the adjourrment of 

th@ aesslon at which l,t was eaaated, nn$ 

~losa In oaae of an ammgenay, whlah emrgmmy 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 uppan fh$ journela." 

Howe Bill no.379 paaaed the House on lay 5, 

1949, by 133 

oate on Ilay 2 % , 

a;$$ ~:~~;,;t~a5xmaaa~ %;h;z;- 

Vas appmmd by the &emor on Juue 17, 1949. The 51at 

Leglalature adjourned July 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- 

'oud and Llro Stook 

ii Abhiirado6 

Relative to your querrtlon go. 2 it la our Oplnlorm that the ofrloem of the 118th Judicial Dlatriat 

court will omaietm~ to innotion imaedlately upon Ootober 

5, 1949, The Co&, whloh was @rested by Rouse Bill 379 

and whloh oame Into existence 'on Ootober 5$h, till prooeed with the bualneaa of the 70th Judlolal Dlatrlct as 

~heaaame relates to Howard, lartln, aud Glasaoook CounHowever, 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 ':in session 

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 Octtiber 5, 19 1 9, 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 

1949; and in Martin County on July 4, 9 

on July 18, 

19 9, such tema 

of ooort to oontlnue in sesalon until the Saturday night 

IePnedlately preoedlng the Wondey for oonoenlng the next 

regular terms of court in the reapeotlve ootW,les. This 

being true, when the 118th Judicial Dlatrlotcame Into 

exlstenoe on October 5th, awh term of oourt shall oontime until they have expired at the tlmea provided for 

in Artlole 199-70. It would be incumbent upon the uewly 

appointed Diatrlot Judge of the 118th Judloial District 

to sit in the courts in rreaslon In the counties of Howard, 

Martin aud Glesscoek after October 5th until the explratlon of the term8 thereof. 

You have raised no question as to the oonstltutlonality of the statutes on aourt terms In question, 

aad we express no opinion thereon. 

Passing to your question Ho. 3 It la our oplnion that the Court Reporter for the 118th Judicial Dlatrlot must be pald the aame a,alary 88 the Court Reporter 

meelves In the 70th Judlolal District upon the effective date of House Bill 379. 

You state that it is your belief that the Co-t 

Reporter should be paid la aooordeuce wltb the general 

statute relating to Court Rcipsrtera* Generally speaking 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 special 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 ooplrt rendered 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 

Col.ultg . It still remained In that Court 

when tried. The Aot of the Legisleture 
.- 

-, Hon. Blton Glllllaud, page 5 (V-927) 

ohaagad the numbar of the Judicial Dlatrlat 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 appoluted Dlatrlot Judge of the 118th 

Judlolml Dlatrlot may try a defendant upon an lndlotnant 

whloh wee presented la ~the 70th Judlolml Dlatrlot la the 

partloular oountlaa affeated while aueh aountlaa wara a. 

part of meld Dlatrlot., 

Your queatloa lo. 5 relates to thm aaoeaalty 

Of mappolmtlug the District Judge for We 119th Judlala1 Diitriot after the affactlre data of House Bill 379. 

It la,our bplnion that Cha wwly appointad Dlatriat Judge 

for the 118th Judlolal Dlatrlat does nst need another appointment 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 appolnted tha raapondaat's ten had not explrad 

and so no vacancy existed in the offloa. 

vhile the appolntnent wma 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 until the moemy mours. The appolQtlnd 

authority wms not bound to wait until the 

raoanay aatually existed before dsalgnatlng his appelntee. Rxpedlsn6y and aonvenienee required that thei appointment 

should ba a@ rode thrt whan tha raapondent's tello,ended t+e sueaeaaor might be 

qualiflad and prapemd .to take the offloe 

and et$ep upon its duties at OMB. Whll9 

it is 'well settled that an officer or appointing 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 

\ appointment thereto for a term whioh is not 

to begin eutil after the explratian of the 

ten of auoh appointing offloer or bodr .' 

(ditlng oases) it io equally well eatabliahad that such officer OP appointing body 

may make a prospeotlvs appointment to fill 

a vacancy vhloh is suFe to ocou~ in a pub110 office within the time duPlug whioh the 

appointing officer or body, aa.then oonatitutbd, will have authority to fill the vaoancy . . . As the vaoancy in question was 

8111~) to OCCUF dllring the Qoverno~'s tern of 

office, he might, in the santwP which he 

adopted, properly make the appointment, in 

antioipation of the event.* 

66 N.w.264 

Iu the aase of State ox ml..Child v. O'Leary, 

(mw.aup.18%), the 6ourt -Stated: 

I 

. . . It la the general rule that a 

proapeotlv* appointrant to fill a vfmamy 

star0 to OOO~UP in a public offioe, made by 

an offloeti, vho, or a body vhlch, aa then 

constituted, is eepowemd to fl1l.a vapancY 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 pFevlously eonmencod while Hovard, Martin, and Glessoock 

Counties were a part of the 70th Judicial 

District will be continued until the axpiration of their tenas. The newly appointed Distriot Judge of the 118th Judlala1 District may sit in all oases heard 

duPlng these oontlnuons tePma. 

The Court Retporte~ for the 118th Judicial Distriot will receive the same rate 
Bon. Elton Gllliland, page 7 (V-927) 

Or pay as the, Reporter 0r the 70th Judl0101 qistrict rsOeiv6d OLI the 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 bar0m the erreOtm4 data 0r the dot, there4 

is no neoemsit~ for a reappointment in 

order fop raid Judge to qualify roF.Orri0e e 

Yours verg truly, 

ATTORIES@3RiBRALOF TEXAS 

BW:bhnmw BY 

Burnall Waldnp &YJ 

AssIstant 

P 

FIBST ACiSISTAl9T 

AVQIww '=WiBL 

.