.Y-. 

P 

July 5, 1988 

Honorable Jerry Cobb Opinion No. JM-929 

Criminal District Attorney 

5th Floor Carroll Courts Bldg. Re: Eligibility of certain 

P. 0. BOX 2344 former district judges for 

Denton, Texas 76201-2899 assignment (RQ-1429) 

Dear Mr. Cobb: 

YOU ask about the eligibility of certain former 

district judges to sit by special assignment. The presiding 

judge of an administrative judicial region is authorized 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 judges who are eligible for 

assignment by the presiding judge. Eligible judges include 

a former district judge or retired or former 

statutory county court judge who certifies to 

the presiding judge a willingness to serve 

and to comply with the prohibitions relating 

to the practice of law imposed on a retired 

judge by Section 44.005, Title llOB, Revised 

Statutes, and who is on the list maintained 

by the presiding judge as required by this 

chapter. 

Gov't Code 5 74.054(a)(3). 

Your specific question is about section 74.055 of the 

Government Code, which requires the presiding 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 is that the 

judge have served as a judge for at least four years in a 

district, statutory, or appellate court. You ask about the 

interpretation of an exception to that four-year requirement 

enacted by the 70th Legislature. Before we address your 

specific question, however, it is necessary to review the 

statutory history of section 74.055 in order to clarify what 

version of section 74.055 is to be given effect. 

P. 4660 
Honorable Jerry Cobb - Page 2 (JM-929) 

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The statutes permitting the presiding judge of an 

administrative judicial region to make special assignments 

were enacted in 1985 as part of the Court Administration 

Act. Acts 1985, 69th Leg., ch. 732, § 2, at 2534. The 

Court Administration Act was initially codified as article 

200a-1, V.T.C.S. The provisions that are now in section 

74.055 of the Government Code were originally enacted as 

section 4.015 of article 200a-1. 

Three bills enacted by the 70th Legislature purported 

to affect section 4.015 of article 200a-1. One of those was 

an omnibus bill conforming the Judicial Title of the 

Government Code to changes in the 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. 5 5.01(a) 

(stating that Chapter 148 is a nonsubstantive 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 4.015 was, however, substantive. It 

added statutory county court judges to the judges eligible 

to sit by special assignment. Thus, the version.of section 

74.055 enacted by Chapter 148 is different 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 a provision of Chapter 148 prevails over 

the Chapter 148 provision. 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 of article 200a-1. Id. 

5 2.14 (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 judge who has served as 

judge of more than one district court is not 

required to meet the four years of service 

requirement in Subsection (c)(l) to be 

eligible to be named on the list. 

Acts 1987, 70th Leg., ch. 516, at 2128 (effective August 31, 

1987)(hereinafter "Chapter 516"). There is no reference in 

p. 4661 
Honorable Jerry Cobb - Page 3 (JM-929) 

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Chapter 516 to the recodification of section 4.015 of 

article 200a-1; Chapter 516 refers only to section 4.015 of 

article 200a-1. Because Chapter 674 expressly repeals 

section 4.015 of article 200a-1 while Chapter 516 amends it, 

there appears to be a conflict between those two enactments. 

Chapters 674 and 516 can, however, be easily harmonized. Gov't Code 5 311.025(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 in doing so, added a category 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 the Government Code, as enacted.in 

Chapter 674.1 

Your specific question is about the interpretation of 

the provision 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 for a "former district judge 

who has served as judge of more than one district court." 

You suggest that there are two possible interpretations of 

that language. You suggest that the exception could apply 

to a judge who has been elected or appointed to more than 

one district court judgeship or that it could apply to a 

judge who 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 or districts from time 

to time. 

1. A recent decision of the Texas Supreme Court presents 

a much more complex issue of statutory construction 

involving section 74.503 of the Government Code, which was 

the subject of several different enactments of the 70th 

Legislature. State v. Preslar, 31 Tex. Sup. Ct. J. 353 

(April 27, 1988). The four concurring opinions in Preslar 

underscore the difficulty of harmonizing conflicting 

statutes adopted by the same session of the legislature. 

P. 4662 
Honorable Jerry Cobb - Page 4 (JM-929) 

The tape recordings of a hearing before the House 

Committee on Judicial Affairs make clear that Chapter 516 

was enacted to allow one person, a judge in Galveston 

County, to sit by special assignment. Hearing on H.B. 636 

before the House Comm. on Judicial Affairs 70th Leg. (March 

11, 1987). The judge was appointed by Governor Briscoe to 

fill a vacancy in a district judgeship. He was then 

defeated in the subsequent election to fill the judgeship. 

Subsequently Governor Clements appointed him to fill a 

vacancy in a different district court. He chose not to run 

when the term expired. His total service was less than four 

years. Representative Hury stated in the committee meeting 

that it would be unlikely that anyone other than that one 

judge would meet the narrow criteria set out by Chapter 516. 

If every 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 had been elected or appointed to more than one district 

judgeship. The legislature did not intend to allow any 

district judge who has exchanged benches pursuant to section 

24.303 of the Government Code to be exempted from the 

requirement that a judge must have four years of judicial 

service to sit by special assignment. 

SUMMARY 

Acts 1987, 70th Legislature, chaper 516, 

page 2128, adds an exception to the reguirement that a judge must have four years of 

judicial experience to sit 

5 74":55. 

special 

assignment. Gov't Code The. 

exception is for a "former district judge who 

has served as judge of more than one district 

court," and it applies only to a judge who 

has been elected or appointed to more than 

one district 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 

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MARY KELLER 

First Assistant Attorney General 

p. 4663 

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Honorable Jerry Cobb - Page 5 (JM-929) 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAK-Y 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

P. 4664