Boon. Robert L.~%;Yrk County Attorney * opitioa'

lb. T-851

Lamb County Re:JTexm time of the RiaLittlefield, Texas trict Court, 64th 'Judioia1 Dim?iot, an the 'ligrrt of ramid le

fislation

### mwting te distriot. P5ar Sir,: .*

we refer to your letter o,f aeajr 84, 1947, s,a whioh you requestedanopinion of this Departmentand which reads in part as.follows:

"The District Court of Lamb County has been and is in the 64th JudicialDisc, trict. The last term began on the 5th Monday after the 1st bionday in January, 1947, and was supposedto continue in sessionuntil the Saturdaypreceding the 1st Monday in Augur&. A Grand Jury wae duly impanelledand attended te the business thea on hand. It was recesseduntil suoh time during the term as it might agaSn be needed. During this present see.- !,

SPOB of the,Legislature, a bill was Lntroduced,pansed and became effeotiveon Ray ,Q 1947 which added Parmer County to the 64th JudicialDistrict, This bill slightly changed the terms of the varioue courts in the Distrbot. Xt did Rot change the be inning date of the next term of the,Dlstr ot Court in Lamb County. This bill made 1
no provision for ,the oantinuatlonot the terms of, ,court then in seasion. It ia a&B-, templated,e.nd,there xists a neoessityfor callingthe Grand Jury in Lamb County **back** into eeeeion before the next term of Court, ;

"Does the February term of C,ourtoontinue in Iamb County until the gaturdaybefore the 1st Monday in Augurst, 19477Hon. RobertL. Kirk - Page 2

"If the Grand Jurors iRho were imanelhd ]x. : in Februarywere called back nto aessibnat this time;would an indictmentpresentedby them be valid?=

Upon checkingthe Bill in the Secretaryof State's office.aspassed by the Legislature, we find that it furtherprovides that the terms of Court for Lamb County shall begin on the firstMonday in February and the first Monday in August; and that eaoh term of. Court,.in

each of such counties of the 64th Districtnay continueuntil the Saturday imnediately preoedingthe Honday for oonvenlngthe next regular term therein.

The pertinentportion of Article V, Section 7, of the State Constitution providea:

*The State shall be divided into ,ae many judioialdiatrioteas may now or hereafterbe providedby law, whioh may be increasedor dipliniahed by law

. *

. He shall hold the regular terms of his court at the county seat of each county in his distriotat least twioe In each year in such manner as may be prescribedby law.*

In Keaton v. Stafe, 57 S.W, 1125, the appellant, under facts Similar to those berore us here, contended that the Court at the time of his conviction;was not lawfully in $ea&on, beoauee~theLegislature had, since the conveningof the Court, repealed the law fixing the time for holding terms of the DistrictCourt in and for ColemanCounty by passing an amendmentfixing the tiines

for holding said Courtin 'said aounty,which terminatedthe February term, 1899, of said Court and this Court could not again lawfully.bein sessionbefore the first Monday in September,1899. 7Ve quote from the
caee as followa:

n

. . . Them

regular'time

for conveningof the term of oourt at appellantwas tried was the first in February, 1899, to continue in

-. - the,'

which Monday
see-

. _ 91011 four weeks. The Court was organized
on said day. While the court was in session and being held under the then-existing law, the legielature passed an act, with the .emergenQ clause attached,merely addingto the term of court for ColemanHon. Robert L. Kirk .- .Page3

county one **weeks** The amendmentprovided for the term to begin the first Monday in Februaryand to remain in session five weeks,. It will be seen from this that the beginning of the term waa not changed,ana that the olear intendmentof the legislature ‘was aimply to ‘give one additional

week to Coleman county for the distriot court, and the amendmentwas not intended to have a retrospeotiveeffect, 60 as to repeal the then-existing term of the distriot oourt of Coleman county. Article 5, PI,7, of the constitutionprovides: ‘The state shall be diviaed into as many judioialdistriote as may now or hereafterbe provided by law, which may’ be iacreaaed
or diminishedby law+. Be (thedietrlot judge) shall hold the regular term of his court at the county seat of, eaoh oounty in his district at least twice each year, in such menner as may be presaribedby law.( The bare statemento.f

this oohstitutional provisionwould certain1 ooastruotionof the Le precluds the
amen nt legislature

as contendedfor b

by the

lant; his oontention being tha

f appel-, the amendmentrepealed the previ~ua law whereby the session of the distriot oourt of Coleman countywas authorized to begin on the firstMonday fn February. If this is~a repeal of the old law, then Coleman oountywould be deprived of on% term of the diatriot court,which would be in the face of the a$n&itutional prsvision quoted

l L .

In the case of Rx parte Murphy reported in 11 5. w. 487, the defendant insistedthat his oonviotion
was ‘illegal

and void beoauserendemd at a time when a legal term of the Court could hot be had& We quote from the same as follows:

” o ,The

facts ,arethat the aaid term wai ie’ld

at the time“fixedbye the act of 1885, (Laws 1805, p’. 8,) that is,Hon. Robert L. Kirk - 'Page 4

commencingon the fifth after the first Monday in March. On April 2, 1829, six days prior to the conveningof said term,
on April 8th, an aot was passed by the legislatureohangiw the time of holding said court in said county to the fourth Monday in Uarch.~ This act containsan emergencyclause,and declares that it shall take effect from.itspassage. Applicant contends that after the passage of said aot of April 2, 1889, a legal term of the dietriot oourt for Karnea county could not be held, except at the times prescribedby said act:

*We are of opinion that the term of the oaurt at whioh the oonviotion was had was a legal term. If it were held' otherwiee,the effeotwoulU be t&deprive Karnes county of on0 term of said court for the present year, when the constitution dealares that twu terms of the district court shall be held each year sin eaoh county. Con&, Art. 5,I3 7, In-construingan act of .the legislature,,

It is the duty of the court to so interpret‘the legislativeiatent as to harmonizethe pr@YiSiOi.M

of' the sot with the oonstitution, if this can be,done rea,eonably,& It must be presumed that the legislature did not intend to disregardthe above-cited provision of the oonatitution by depriving Karnes or any other'countyof the disc triot of the oonstitutfonal right to have two terms of the diatriot court in each year. If such was the intent, the act would be void, and the courts in that district would have to oontinue to be held at the times fixed by the old law. Wotwithstandingthe emergencyclause'insaid abt of April 2d, we feel justifiedin ho&ding thatit uas not the legislativeintent that said act should immediatelytake effeot, but that it should become operative only at a time whsn it would not deprive any oounty in the district of~,two terms of court, , r"

In view'of the foregoing,you are respect-Hon. Robert L. Xirk - Page,45'>

fully adrieed that it is the opinionot this Department that the February term of Court continues in Lamb Couniig4ytil the Saturdaybefore the iirat Monday in August,

. (8~ aleo Bowden, et al, Y. Crawford,195 S.W.5)

This being true, it naturallyfollow6 that the second questionis answered in the arfi~mative. That ia, ii the Grand Jurors who were impanelledin February
were oalled back'into sessionat this time, an indiotment presentedby them would be valid.

SUMMARY

The preeent term of the Dietrict Court of Lamb County remaina unohangedfor the remainder of the ,term even though the Legia; laturepassed a Bili effeotiveMay 3~1947, changing the terms of' oerta~in

countiesof the 04th JudioialDistriot, of which Distriot lamb County belonga,~.ana ,although

the Bill made no provisionfor the oontinuatioh of the terms of Court .then in ee$sion;otherwisethe ,oounty ?iwouM be deprived or two full terms or Court each yeax,inviolation of ArticleV, Seo. 9, of the State Constitution, Keaton v, State, 57 S.W. '1125; Ex parts Murphy, 11 S.W; 4870 If the 'Grand Jurora who were impaaelled in the February term wexe calleaback-into sessionat this times an lndiotmentpresented by them would be valid. :

Very truly yours

ATTORNEY GEWBRAL 03' TEXAS

BA:WR Assistant

APPROVED JURE 12, 1947

iiiii&or ,-a