Honorable Maurice S. Pipkin

Executive Director Opinion No. M-296 State Judicial Qualifications Board Re: Date onwhich terms of Austin, Texas 78711 members of State Judicial Qualifications Commission Dear Mr. Pipkin: commence and terminate.

You have requested the opinion of this office cons cerning the above matter, and, in this connection, have provided uswith the following statement fromwhich we quote, in part: "The State Judicial Qualifications Commission' was established by Constitutional Amendment during the 59th Session of the Legislature andwas adopted by thevoters of the State in the General Election inNovember, 1965. Relative to appointment and term of office theConstitutional Amendment reads as follows: "(2) There ishereby created the State Judicial Qualifications Commission, to COnSist of nine (9)members towit: (i)two (2)Justices of Courts of Civil Appeals; (ii)two (2)District Judges; (iii)two (2)members of the State Bar,who have respectively practiced as such for over ten (10)consecutive years next preceding their selection: (iiii)three (3)citizens, at least thirty (30)years of age, not licensed to practice lawnor holding any salaried public office or employment; provided thatno person shall be or remain amember of the commission who does notmaintain physical residence within this State, orwho resides in, or holds a judgeship within or for, the same Supreme Judicial District as another member of theCommission! orwho shall have ceased to retain the qualifications above specified for his respective class ofmembership. Commissioners of classes (i)and (ii) above shall be chosen by the Supreme Court with advice and consent of the Senate, those of class (iii)by the Board of Directors of the State Bar under regulations tobeprescribed by the Supreme -1429-Hon. Maurice S. Pipkin, page 2 (M-296)

.-Court with advice and consent of the Senate, and those of class (iiii)by appointment of the Governor with advice and consent of the Senate. "(3) The regular term of office of Commissioners shall be six~(6)years;'but the initial members of each of classes (i), (ii)and (iii) shall respectively be chosen for terms of four (4)and six (6)years, and the initial members of class (iiii) for respective terms of two (Z), four (4)and six (6)years. Interim vacancies shall be filled in the samemanner asvacancies due to expiration of a full term; but only for the unexpired portion of the,term inquestion. Commissioners may succeed themselves in office only ifhaving served less than three (3)consecutive years. "Subsequent to that time, Commissioners class (i)and (ii)were chosen by the Supreme Court, those of class (iii)by the Board of Directors of the State Bar, and those of class (iiii)by the Governor. All were confirmed with advice and consent of the Senate. "TheLegislature of the State ofTexas, 60th Called Session, provided funds for the establishment of an office and staff and set forth the term of office as follows: "Chapter 516 (H.B.No. 378) "Section 13. The initial term of themembers of said Commission shall commence as of the 22ndday ofMay, 1967. ,I

. . . II

. . . Under the law and facts as given to you,when were the appointments effective, and, therefore, when do such appointments terminate?" Section l-a ofArticle V of the Constitution of Texas, towhich you refer, was adopted at the General Election onNovember 2, 1965. Quoting from the text of said Amendment:

"(2) There ishereby created the State Judicial Qualifications Commission

. . . ." (Emphasis added.) -1430-,

Hon.Maurice S. Pipkin,,page 3 (M-296)

You have further advised that the official canvass showing adoption of the constitutional amendment was November 19, 1965. The effective date of creation of theCommis~sion was November 19, 1965, and the initial terms of thepositions thereon began running from such date for respective two, four, and six year periods. An amendment,is deemed tobecome a part of the Constitution on thedate of the official canvass showing ithas been adopted. 12Tex.Jur.Zd 358,Const. Law, Sec. 8; Torres v. State, 161Tex.Crim. 480, 278 S.W.Zd 853 (1955); Rogers v. State, 163 Tex.Crim. 260, 289 S.W.Zd 923 (1956). A term of office isnot necessarily measured by the date of * appointment thereto, but rather by thedate setby the act which brings such office into existence. Even though no soecific date ismentioned bv such act. its termsmav be such. as is the case here, that adefinite datemay be readily as- ' certained. Bruce v. Matlock, 111 S.W. 990 (Ark.Sup. 19,08); Boyd v. Huntington, 11P.2d 383 (Calif.Sup. 1932); People v. Morris, 106 P.Zd 635 (Calif.Dist.App. 1940).

The primary question involved herein arose from the passage on June 14, 1967, by the Legislature of abill dealingwith the Commission, including aprovision that the initial terms commence May 22, 1967. The foregoing discussion having shown that the initial terms began onNovember 19, 1965, an obvious conflict arises with the provision inquestion. [On page 384 of Boyd v. Huntington, supra, somediscussion is directed to the efficacy of establishing a set date for terms ofboard members appointed to staggered-terms.] Three rules ofdecision harmonize to settle this conflict, the first being that, where a constitutional provision comes into irreconcilable conflict with a statutory,provision, the former shall control. 12Tex.Jur.2d 374, Constitutional Law, Sec. 30.

The second rule ofdecision holds that, where a term of office is setby the Constitution, the Legislature may neither shorten nor extend such term by statute. 47Tex.Jur.Zd 58,Public Officers, Sec. 38. And the third rule is likewise directed to the conflict athand, inholding that, where a controversy arises as to the duration of a term of office, the earliest dates for commencement and termination of the term should be adopted,,in order toreturn the selective power to those exercising same at the earliest opportunity. Wright v. Adams, 45Tex. 134 (1876); accord, Dobkins v. Reece, 17 S.W.Zd 81 (Tex.Civ.App. 1929, error ref.).
You are hereby advised, therefore, that the State Judicial Qualifications Commission came into existence on

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Hon. Maurice S. Pipkin, page 4 (M-296)

November 19, 1965, and the initial terms of office commenced on that date, and terminate November 19, 1967, 1969, and 1971 respectively.
SUMMARY

The State Judicial Qualifications Commission, created by adoption of Section l-a ofArticle V of theConstitution of Texas, came into existence on November 19, 1965. The initial terms of office commenced on that date, and terminate November 19, 1967, 1969, and 1971, respective1 27

Prepared by Bill Corbusier Assistant Attorney General
APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman Dyer Moore, Jr. Bob Lattimore Malcolm Quick Bill Craig
A. J. CARUBBI, JR. Executive Assistant ney General of Texas

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