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P July 5, 1988

Honorable Jerry Cobb Opinion No. JM-929 Criminal District Attorney 5thFloor Carroll Courts Bldg. Re: Eligibility of certain P. 0. BOX 2344 former district judges for Denton, Texas 76201-2899 assignment (RQ-1429)

DearMr. Cobb:

YOU ask about the eligibility of certain former district judges to sitby special assignment. The presiding judge ofan administrative judicial region isauthorized to assign judges to try cases and dispose of accumulated business. Gov't Code §74.056(a). Section 74.054 of the Government Code sets out the judgeswho are eligible for assignment by thepresiding judge. Eligible judges include

a formerdistrict judge orretired or former statutory county court judgewho certifies to thepresiding judge a willingness to serve and to comply with theprohibitions relating to thepractice of law imposed ona retired judge by Section 44.005, Title llOB, Revised Statutes, andwho is on the list maintained by thepresiding judge as required by this chapter.

Gov't Code 574.054(a)(3).

Your specific question is about section 74.055 of the Government Code,which requires thepresiding judge to keep
a list of judges subject to assignment and sets out qualifications for judges who are eligible to sit by assignment. One of the necessary qualifications isthat the judge have served as a judge forat least fouryears in a district, statutory, orappellate court. You ask about the interpretation ofan exception to that four-year requirement enacted by the 70th Legislature. Before we address your specific question, however, it isnecessary to review the statutory history of section 74.055 inorder to clarify what version of section 74.055 istobe given effect.



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The statutes permitting the presiding judge of an administrative judicial region tomake special assignments
were enacted in 1985as part of the Court Administration Act. Acts 1985, 69th Leg., ch. 732, § 2, at 2534. The CourtAdministration Actwas initially codified as article 200a-1, V.T.C.S. Theprovisions that are now in section 74.055 of the Government Codewere originally enacted as section 4.015 ofarticle 200a-1.

Three bills enacted by the 70th Legislature purported to affect section 4.015 ofarticle 200a-1. One of those was an omnibus bill conforming the Judicial Title of the Government Code to changes inthe law and nonsubstantively recodifying certain statutes, including article 200a-1. Acts 1987, 70th Leg., ch. 148,at 534 (effective September 1, 1987) (hereinafter "Chapter 148"): see id. 55.01(a) (stating that Chapter 148 isanonsubstantive codification). Chapter 148 repealed article 200a-1 in its entirety and recodified the substance of section 4.015 of article 200a-1
as section 74.055 of the Government Code.

A second bill also reenacted section 4.015 of article 200a-1 as section 74.055 of the Government Code. Acts 1987, 70th Leg., ch. 674, 5 2.10, at 2507 (hereinafter "Chapter 674") (section 2.10 effective September 1, 1987). The reenactment of section 4.015was, however, substantive. It added statutory county court judges to the judges eligible to sitby special assignment. Thus, theversion.of section 74.055 enacted by Chapter 148 isdifferent from the version enacted by Chapter 674. Section 5.01(d) of Chapter 148 provides that any statute enacted by the 70th Legislature that conflicts with aprovision of Chapter 148prevails over the Chapter 148provision. Therefore, section 74.055 as enacted by Chapter 674 prevails over section 74.055 as enacted by Chapter 148.
Chapter 674, like Chapter 148, contained a provision specifically repealing section 4.015 ofarticle 200a-1. Id. 52.14 (effective September 1, 1987). Nonetheless, a third bill purported to amend section 4.015 of article 200a-1 by adding subsection (d)to read as follows:

A former district judgewho has served as judge ofmore than onedistrict court is not required tomeet the four years of service requirement in Subsection (c)(l) to be eligible tobe named on the list.

Acts 1987, 70th Leg., ch. 516, at 2128 (effectiveAugust 31, 1987)(hereinafter "Chapter 516"). There isnoreference in

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.- Chapter 516 to the recodification of section 4.015 of

article 200a-1; Chapter 516refers only to section 4.015 of article 200a-1. Because Chapter 674 expressly repeals section 4.015 ofarticle 200a-1 while Chapter 516 amends it, there appears tobea conflict between those two enactments. Chapters 674and 516 can,however, be easily harmonized. Gov't Code 5311.025(b) (providing that amendments to same statute enacted at same session should be harmonized). Chapter 674 did not eliminate the substance of section 4.015. It moved it to section 74.055 of the Government Code, and indoing so, added acategory of judges eligible to sit by special assignment. Chapter 516 made another addition to the substance of section 4.015. Those amendments are not inconsistent in substance. The only inconsistency is one of statutory reference. Thus, the provision added by Chapter 516 should be given effect as part of section 74.055 of theGovernment Code, as enacted.in Chapter 674.1

Your specific question is about the interpretation of theprovision added to section 74.055 by Chapter 516. That provision makes an exception to the requirement that a judge must have four years of judicial experience to sit by assignment. The exception is fora "former district judge who has served as judge of more than onedistrict court." You suggest that there are twopossible interpretations of that language. You suggest that the exception could apply toa judgewho has been elected or appointed tomore than onedistrict court judgeship or that itcould apply to a judgewho has exchanged benches or districts pursuant to section 24.303 of the Government Code. Section 24.303 allows judges in counties in which there are two or more district courts to exchange benches ordistricts from time to time.

1. A recent decision of theTexas Supreme Court presents
a much more complex issue of statutory construction involving section 74.503 of theGovernment Code, which was the subject of several different enactments of the 70th Legislature. State v. Preslar, 31Tex. Sup. Ct. J. 353 (April 27, 1988). The fourconcurring opinions in Preslar underscore the difficulty of harmonizing conflicting statutes adopted by the same session of the legislature.

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The tape recordings of ahearing before the House Committee onJudicial Affairs make clear that Chapter 516
was enacted to allow oneperson, a judge in Galveston County, to sitby special assignment. Hearing onH.B. 636 before theHouse Comm. onJudicial Affairs 70th Leg. (March 11, 1987). The judgewas appointed by Governor Briscoe to fill a vacancy in a district judgeship. He was then defeated inthe subsequent election to fill the judgeship. Subsequently Governor Clements appointed him to fill a vacancy inadifferent district court. He chose not to run when the term expired. His total service was less than four years. Representative Hury stated inthe committee meeting that itwould be unlikely that anyone other than that one judgewould meet thenarrow criteria set outby Chapter 516. Ifevery judge who ever exchanged a bench were eligible, given how common this practice is, the exception would swallow the rule. Therefore, it is clear that the legislature intended Chapter 516 to apply only to a judge who hadbeen elected orappointed tomore than one district judgeship. The legislature did not intend to allow any district judgewho has exchanged benches pursuant to section 24.303 of the Government Code to be exempted from the requirement that a judgemust have fouryears of judicial service to sitby special assignment.

SUMMARY

Acts 1987, 70th Legislature, chaper 516, page 2128, adds anexception to the reguirement that a judge must have fouryears of judicial experience to sit 574":55.special assignment. Gov't Code The. exception is fora "former district judgewho has served as judge ofmore than onedistrict court," and it applies only to a judge who has been elected or appointed tomore than
onedistrict court. It does not apply to district judges who have exchanged benches pursuant to section 24.303 of the Government Code.
Very truly yo s

LJ-M"te;A

c

JIM MATTOX Attorney General of Texas .-

MARY KELLER FirstAssistant Attorney General

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LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAK-Y Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Sarah Woelk Assistant Attorney General

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