October 25, 1973 

The Honorable Dolph Briscoe Opinion No. H- 134 

Governor of Texas 

State Capitol Re: Governor’s apppointive 

Austin, Texas power under $ $4 and 5 

of Senate Bill 52, 63rd 

Legislature, creating 

Dear Governor Briscoe: new judicial districts 

You hatie asked this office for an opinion concer~ning your appointive 

powers under certain new judicial districts created by Senate Bill 52 of 

the 63rd Legislature, (Acts 1973, 63rd Leg., ch. 316, p. 731). 

You have referred us to Sections 4 and 5 of the bill, which amend 

Article 199a, Vernon’s Texas Civil Statutes: 

Sec. 4. ‘I ’ [Article 199a, Vernon’s Texas 

Civil Statutes], is amended by adding Sections 

3. 041-3. 042 to read as follows: 

‘Sec. 3. 041. The 213th Judicial District, 

composed of the County of Tarrant, is hereby created. 

‘Sec. 3. 042. (a) The 214th Judicial District, 

composed of the County of Nueces, is hereby created. 

‘(b) The 214th District Court shall give preference to criminal cases. ’ 

Sec. 5. ” ’ [Article 199a, Vernon’s Texas 

Civil Statutes], is amended by adding Section 3. 043 

to read as follows: 

‘I ’ Sec. 3. 043. (a) The 215th Judicial District, 

composed of Harris County, is created. 

p. 645 
. - 

The Honorable Dolph Briscoe, page 2 (H-134) 

” ’ (b) The 215th District Court shall give 

preference to civil matters. ’ ” 

“Sec. 7 . . . . 

“(c) The provisions of Section 4 of this Act 

take effect January 1, 1975. 

“(d) The provisions of Section 5 of this Act 

take effect January 20, 1975. ” 

Your letter states: 

“I respectfully request an offitiial legal 

opinion of your Office as to whether I have any 

appointive power in connection with appointment of 

judges to these courts and, if so, when is the proper 

time to make these appointments? ” 

Article 5, 5 28, of the Texas Constitution provides in part: “Vacancies ,’ 

in the office of Judges of the Supreme Court, the Court of Criminal Appeals, 

the Court of Civil Appeals, and Dist?ict’Courts’ shall be filled by the Governor until the next succeeding General Election. . . . ” 

Section 2. 005 of Article 199a, V. T. C. S. , provides: 

“The di,strict judge of each new district 

created by this Act shall be appointed by the governor 

in the manner prescribed by the constitution and laws 

of the State of Texas and shall serve in such capacity 

until the next succeeding general election and until his 

successor has been duly elected and has qualified. ” 

We believe that the Legislature has manifested a clear and unambiguous 

intention that the judicial offices established in the above quoted provisions 

shall not become effective until January 1, 1975, and January 20, 1975, respectively. Postponing the effective date of this legislation was clearly within the 

p. 646 
. - 

The Honorable Dolph Briscoe, page 3 (H-134) 

province and power of the Legislature. Norton v. Kleberg County,231 

S. W. 2d 716 (Tex. 1950); Rudco Oil & Gas Company v. LeMasters, 146 

S. W. 2d 806 (Tex. Civ.App. , Esstland ,. 1940, error dism’d. jud car. ). 

No vacancy could~possibly occur in these officesuntil they become 

effective; and thus, they cannot be filled by the general election in 1974. 

It will be the authority and the duty of the Governor to make appointments 

to fill these offices when they become effective on January 1, 1975, and 

January 20, 1975, respectively, and to continue until the next general 

election, presumably in 1976. 

Concerning the proper time for making such appointments, prospective appointments to these judicial offices can be announced, but 

they cannot be effectively made until the offices exist, which will occur 

at the time these office become effective on January 1 and..January 20, 1975, 

respectively. Accordingly, your official appointments cannot be made until 

that time. 

. 

SUMMARY 

The judicial offices created by Section 4 of 

Senate Bill 52, 63rd Legislature, and made effective 

on January 1, 1975, and the judicial office created by 

Section 5 of Senate Bill 52, 63rd Legislature, and 

made effective on January 20, 1975, should be filled 

by appointment by the Governor, which appointment 

would only be effective at the time of the above-stated 

effective date of the offices. 

Attorney General of Texas 

.- 

Opinion Committee 

p. 647