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 4and 5of 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 ofthe 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 ofHarris 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 4ofthis Act take effect January 1, 1975.

“(d) The provisions of Section 5ofthis Act take effect January 20, 1975. ” Your letter states:

“I respectfully request an offitiial legal opinion ofyour Office as to whether Ihave 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, 528, ofthe Texas Constitution provides inpart: “Vacancies ,’ inthe office ofJudges 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 ofArticle 199a, V. T. C. S., provides:

“The di,strict judge of each new district created by this Act shall be appointed by the governor inthe 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 ofthe 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. Itwill be the authority and the duty ofthe 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 1and..January 20, 1975, respectively. Accordingly, your official appointments cannot be made until that time.

. SUMMARY The judicial offices created by Section 4of Senate Bill 52, 63rd Legislature, and made effective on January 1, 1975, and the judicial office created by Section 5of 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 atthe time ofthe above-stated effective date of the offices.

Attorney General of Texas

.- Opinion Committee
p. 647