Honorable Joe Resweber 

County Attorney 

Harris County 

Harris County Courthouse 

Houston, Texas 77002 

Dear Mr. Resweber: 

3, 1966 

Opinion X0. C-r* 

Re: Appointment of retired 

judges of appellate 

courts to active duty 

on Courts of Civil 

Appeals. 

By letter to this office dated May 27, 1966, you 

have requested an opinion In regard to the above matter. We 

quote from your letter as follows: 

1, 

. . . 

"Due to the recent constitutional amendment Judge Werlein will be required to retire in the 

latter part of 1967, thus creating a .vacancy to be 

filled by Governor Connally. As you no doubt know,, 

the Court of Civil Appeals for the First Supreme 

Judicial District continually has a serious overload 

of cases which must be transferred out on equalization, a practice not enjoyed by the vast majority 

of the lawyers in the district. . . .I 

"'The question that we,propound is based 

upon the assumption that Chief Justice Robert W. 

Calvert would assign him to service with the Court. 

The Houston Bar Association would like to obtain an 

opinion as to ~whether or not, If assigned by Judge 

Calvert, Judge Werlein can continue to serve so long 

as his assignment Is effective as a "fourth member" 

of the Court in the sense that he can participate In 

decisions and cast his vote and prepare written opinions 

for the court. It is assumed, of course, that the 

presiding Chief Justice would sit in all cases submitted, but the Associate Justice would rotate so that 

there would be no more than three members of the 

court as to any particular cause.' 

-3537- 
, . 

Hon. Joe Resweber, page 2 (c-734) 

Article V, Section 6, of the Texas Constitution provides for the establishment of Courts of Civil Appeals and contains, in part, the following: 

11 

. . . and shall establish a Court of Civil 

Appeals in each of said districts, which shall 

consist of a Chief Justice and two Associate 

Justices, . . . 

I, . . . Said Justices shall be elected by 

the qualified voters of their respective districts 

at a genera; election, for a La7 term of six 

years . . . 

vides: 

Article IV, Section 12, of the Texas Constitution pro- 

"All vacancies in State or district offices, 

except members of the Legislature, shall be filled 

unless otherwise provided by law, by appointment 

of the Governor, which appointment, if made during 

its session, shall be with the advice and consent 

of two-thirds of the Senate present. If made during 

the recess of the Senate, the said appointee, or some 

other person to fill such vacancy, shall be nominated to the Senate during the first ten days of 

its session. If rejected, said office shall immediately 

become vacant, and the Governor shall, without delay, 

make further nominations, until a confirmation 

takes place; But should there by no confirmation 

during the session of the Senate, the Governor shall 

not thereafter appoint any person to fill such 

vacancy who has been rejected by the Senate; but 

may appoint some other person to fill the vacancy 

until the next session of the Senate or until the 

regular election to said office, should it soonor 

occur. Appointments to vacancies in offices 

elective by the people shall only continue until 

the first general election thereafter." 

Article V, Section 11, of the Texas Constitution provides in part: 

"No judge shall sit in any case wherein he 

may be interested, or where either of the parties 

may be connected with him, either by affinity or 

consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel 

in the case. When the Supreme Court, the Court 

of Criminal Appeals, the Court of Civil Appeals, 

or any member of either, shall be thus disqualified 

to hear and determine any case or cases in said 

-3538- 
r 

Hon. Joe Resweber, page 3 (C-734) 

court, the same shall be certified to the Governor 

of the State, who shall immediately commission the 

requisite number of persons learned in the law for 

the trial and tetermination of such cause or 

causes. . . ., 

Article V, Section l-a; of the Texas Constitution, 

adopted at a date subsequent to the dates of adoption of the 

above quoted portions of the Constitution, provides, in part, 

that: 

"(1) Subject to the further provisions of 

this Section, the Legislature shall provide for 

the retirement and compensation of Justices and 

Judges of the Appellate Courts and District and 

Criminal District Courts on account of length of 

service, age and disability, and for their reassignment to active duty where and when needed. . . .'I 

(Emphasis added.) 

Section 7 of Article 6228b, Vernon's Civil Statutes, 

provides as follows: 

"Judges retired under the provisions of this 

Act shall be judicial officers of the State, and 

during the time they are receiving retirement pay 

shall not be allowed to appear and plead as attorneys 

at law in any Court of record in this State, and 

shall with their own consent, be subject to axgnment by,the Chief Justice or the Supreme Court to 

sit inany Courtof this State of the same dignity, 

or lesser, as that from which they retired, and if 

‘in a District Court, under the same rules as provided by the present Administrative Judicial Act, 

and while so assigned, shall have all the powers 

of Judges thereof. While assigned to said Court 

such Judges shall be paid an amount equal to the 

salary of Judges of said Court, in lieu of retirement allowance." (Emphasis added.) 

QUESTIONS PRESENTED 

For convenience, the discussion of the referenced 

subject may be divided into three questions: 

1. To ,what extent, if any, does Article V, 

Section l-a, of the Constitution modify those 

portions of the Constitution quoted above which 

provide that each of the various Courts of Civil 

Appeals "shall consist of a Chief Justice and two 

Associate Justices"; that "said Justices shall be 

-3539- 
Hon. Joe Resweber, page 4 (C-734) 

elected by the qualified voters of their respective 

districts at a general election for a term of six 

years'; that grant the Governor the power to fill 

vacancies by appointment; and that grant the 

Governor the power to make temporary appointments in 

certain cases of disqualification? 

2. What is the extent of the legislative 

power to "provide for the retirement , . . of 

Justices and Judges of the appellate courts . . . 

and for their reassignment to active duty where 

and when needed" as granted by Article V, Section 

l-a of the Constitution? 

3. Under what circumstances may the Chief 

Justice of the Texas Supreme Court, pursuant to 

Article 6228b, Section 7, Vernon's Civil Statutes, 

assign retired judges of appellate courts to active 

duty on Courts of Civil Appeals? 

DISCUSSION AND AUTHORITIES 

1. To what extent, if any, does Article V, Section 

l-a, of the Constitution modify those portions of the Conetitution quoted above which provide that each of the various 

Courts of Civil Appeals 'shall consist of a Chief Jlustice 

and two Associate Justices"; that "said Justices shall be 

elected by the qualified voters of their respective districts 

at a general election for a term of six ~srsl'; that grant 

the Governor the power to fill vacancies oy appointment; and 

that grant the Governor the power to make temporary appointments in certain cases of disqualification? 

The Texas Courts have adopted certain well-recognized 

rules of constitutional construction which are applicable to 

the solution of this question: 

(1 . . . 

"When one of several equally reasonable constructions will give rise to fewer or less complex 

questions in its application, that construction 

will be adopted. So too, where one of two equally 

reasonable constructions will more certainly or to 

a greater degree effect the purpose of the provision, 

it will be adopted." 12 Tex.Jur.2d 368, Constitutional 

Law, Sec. 22 (and cases cited). 

11 . . . 

"In adopting a particular construction it is 

-3540- 
. 

Hon. Joe Resweber, page 5 (c-734) 

proper to inquire if the consequences of following 

that Eonstruction were those intended by the people, 

12 Tex.Jur.2d 369, Constitutional Law, Sec. 

23'(and cases cited). 

"All provisions of the constitution in relation 

to the same subject matter must be construed together. 

State constitutions are adopted as a whole, end a 

clause that, standing by itself, might seem of 

doubtful import may yet be made plain by comparison 

with other clauses or portions of the same instrument; therefore it is a proper rule of construction 

that the whole is to be examined with a view to 

arriving at the true intent of each part." 12 Tex. 

Jur.2d 371, Constitutional Law, Sec. 27 (and cases 

cited). 

iise, sentence, or word from being superfluous, 

void, or insignificant will be employed. 

"If there is an irreconcilable conflict between 

two provisions, on the principle that the jatter in 

position is the later expression of the will of 

the people, the latter will be given effect. -- And 

should there be a conflict between a general and a 

special provision of the constitution, the special. 

provision will prevail. When one section of the 

constitution expresses a general Intention to do a 

particular thing, and another section expresses a 

particular Intention incompatible with the general 

intention, the particular intention is to be considered in the nature of an exce tion. 

. . . ' 12 Tex.JuMd --Aitutional 37 , Law, 

Sec. 28 (and cases citecij. -(Emphasis added.) 

"In construing a constitutional amendment, the 

court will look both to the evil sought to be cured 

and to the remedy sought to be applied. A constitutional amendment becomes as much a part of the organic 

law as if it bad been originally incorporated in the 

constitution. And a constitutional amendment, being 

the last expression of the will of the people, will 

supersede any conflicting constitutional provision. 

If the later amendment deals with a subject in its 

-3541- 
Hon. Joe Resweber, page 6 (c-734) 

entirety it effects a repeal of all former constitutional provisions dealing with the same subject. 

But if there is no inconsistency the courts have 

the duty to construe the amendment, and preceding 

provisions so as to give effect to all. The conti ro 

adopteri." 

e ma ers and 

12 Tex.Jur.2d 373, Constitutional Law, 

Sec. 29 (and cases cited). (Emphasis added.) 

That portion of Article V, Section l-a, of the 

Constitution which is pertinent to this question is couched 

'in general terms and does not seek to deal specifically with 

those'ar,eas covered by the other constitutional provisions 

quoted herein; If the rules of constitutional construction 

quoted above are applied to this question the result must 

be that Article V, Section l-a, in no way authorizes an increase in the membership of the various Courts of Civil 

Appeals, nor does it change or affect the power of the 

Governor to fill vacancies on such courts by appointment 

and to make temporary assignments in cases of disqualification. If Article V, Section l-a, were construed so as to 

allow assignments of retired judges to active duty on a 

Court of Civil Appeals even though all of the regular judges 

of such court were actively serving, the practical effect 

would be to increase the membership of the court and to at 

least partially nullify the requirement that the judges of 

such courts shall be elected by the qualified voters of the 

particular district. 

2. What is the extent of the legislative power to 

"provide for the retirement . . . of Justices and Judges of 

the appellate courts . . . and for their reassignment to 

active duty where and when needed" as granted by Article V, 

Section l-a of the Constitution? 

Adopting the construction discussed above, Article 

V, Section l-a, gives the Legislature the power to provide 

for the reassignment to active duty on Courts of Civil Appeals 

of retired judges of appellate courts in all cases except in 

those specific instances otherwise provided for by the Constitution and provided that no more than three judges may be 

actively serving at any one time on any Court of Civil Appeais. 

mcle V, Section l-a, in no way,purports to limit the authority of the regular judges of the.Courte of Civil Appeals nor 

to grant the 'Legislature ~power tom so limit their authority 

or terms of offices; therefore, the legislative authority to 

make provision for the assignment of retired judges of 

appellate courts to active duty,on Courts of Civil Appeals 

Is limited in that the tenure and authority of such regular 

judges, while they are on active duty, rpy not be curtailed. 

The area in which the Leg_#&~ure has power to provide for 
. 

Hon. Joe Resweber, page 7 (C-734) 

the appointment of retired appellate judges to active duty 

on Courts of Civil Appeals is thus limited to those situations 

wherein a particular Court of Civil Appeals lacks a full 

complement of three judges by reason of a vacancy or due to 

the disqualification, absence or inability to serve of a 

regular member of such Court of Civil Appeals; such assignment power being limited insofar as it may conflict with 

the constitutional provisions quoted above which provide 

for particular situations and being further limited as to 

duration in that such exercise of the assignment power could 

not result in curtailing the authority or tenure of any 

regular judge of a Court of Civil Appeals who is actively 

serving. 

3. Under what circumstances may the Chief Justice 

of the Texas Supreme Court, pursuant to Article 6228b, 

Section 7, Vernon's Civil Statutes, assign retired judges 

of appellate courts to active duty on Courts of Civil Appeals? 

Several statutes in addition to Article 6228b, 

Section 7, are concerned with making temporary assignments 

of replacements for judges of the Courts of Civil Appeals 

who are disqualified or unable to serve. These statutes 

deal with specific circumstances whereas the subsequently 

adopted Article 6228b, Section 7, gives the Chief Justice 

of the Supreme Court general assignment power. The governing rules of statutory construction are as follows: 

"Broadly speaking, a statute will be construed 

with reference to the entire body of law existing at 

the time of its enactment, insofar as this may be 

necessary to ascertain or effectuate the legislative 

intent. Thus, a statute will be construed in the 

light of the constitution, 

tional law, 

the common law, internaand existing statutory law. More 

particularly, a statute will be construed with 

reference to the general system of legislation of 

which it forms a part. . . . 

"A statute will be construed so that it will 

harmonize with other existing law, unless its 

rovisions clearly manifest a contrary intention. 

bus, where the literal language of one act conflicts with that of another, they should be read 

together and harmonized, if reasonably possible, 

so as to ive effect to each of them. 

Jur.2d 27 8 , Statutes, Sec. 185 (and casez3c%d). 

(Emphasis added.) 

"It is a settled rule of statutory interpretation that statutes that deal with the same general 

subject, have the same general purpose, or relate 

-3543- 
. 

Hon. Joe Resweber, page 8 (C-734) 

to the same person or thing or class of persons 

construction is to carry out-the full legislative 

intent, by giving effect to all laws and provisions 

bearing on the same subject. The rule proceeds 

on the supposition that several statutes relating 

to one subject are governed by one spirit and 

policy, and are intended to be consistent and 

harmonious in their several Darts and vrovisions. 

Thus, it applies where one statute deais with a 

subject in comprehensive terms and another deals 

with a portion of the same subject In a more 

definite way. But where a general statute and a 

more detailed enactment are in conflict, the latte 

will prevail, regardless of whether it was passed 

prior or subsequently to the general statute, 

unless it appears that the legislature intended 

to make the general act controlling. . . .I. 53 

Tex.Jur.2d 280, Statutes, Sec. lob (and cases cite 

(Emphasis added.) - 

r 

d). 

The assignmentpower of the Chief Justice is 

therefore coextensive with the assignment power granted by 

the Constitution to the Legislature as previously discussed 

except that it does not encompass those areas for which 

specific provision has otherwise been made by statute. 

These specific statutes are set out in Appendix A. 

Certain other statutes which indirectly bear on 

the question herein presented but which it is felt do not 

influence the resolution of these questions are included 

for reference in Appendix B. 

SUMMARY 

The Chief Justice of the Supreme Court of 

Texas may assign retired appellate court judges 

to active duty on any Court of Civil Appeals 

-3544- 
Hon. Joe Resweber, page 9 (C-734) 

only in those cases where the~particular Court 

of Civil Appeals lacks a full complement of 

three judges by reason of a vacancy or due to 

the disqualification, absence or inability to 

serve of a regular member of such Court of Civil 

Appeals. Such assignment power is limited in 

the first instance and as to duration insofar 

as its exercise might conflict with Article IV, 

Section 12, Article V, Section 6 and Article V, 

Section 11 of the Texas Constitution and Articles 

1813 and 1815 of Vernon's Civil Statutes; and 

such assignment power is further limited as to 

duration in that any such assignment would be 

automatically terminated by the return to active 

duty of the regular judge whose disqualification, 

absence or inability to serve occassioned the 

assignment. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

BY: iYiizTz-* 

Assistant 

LEBjr:ra:dh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

J. C. Davis 

John Reeves 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. Wright 

-3545- 
Hon. Joe Resweber, page 10 (C-734) 

APPENDIX A 

Article 1813, Vernon's Civil Statutes: 

"(a) The Justices of each Court of Civil 

Appeals shall be elected at the general election 

by the qualified voters of their respective districts. Upon their qualification, after the first 

election after the creation of any Court of Civil 

Appeals, the Justices shall draw lots for the terms 

of office; those drawing number one (1) shall hold 

for the term of two (2) years; those drawing number 

two (2) shall hold for a term of four (4) years; 

and those drawing number three (3) shall hold office 

for six (6) years. Each of said offices shall be 

filled by election at the next general election 

before the respective terms expire; and the person 

elected shall thereafter hold his office for six 

(6) years. 

"(b) After any Justice of any Court of Civil 

Appeals has become totally disabled to discharge 

any of the duties of his office, by reason of illness, physical or mental, and has remained in such 

condition continuously for a period of not less 

than one (1) year, and if it is probable that such 

illness will be permanent, and is of such a nature 

that it will probably continue to incapacitate 

such Justice for the balance of his term of office, 

it shall be the duty of the other two Justices of 

the Court of which such incapacitated Justice is a 

member to certify such facts to the Governor. Upon 

receipt of such certificate by the Governor, he 

shall make proper investigation touching the matters 

therein contained and if he shall determine that 

the facts contained in such certificate are true, 

and that a necessity exists therefor, he shall 

forthwith appoint a Special Commissioner having the 

requisite qualifications of a member of such Court 

to assist the same. Such Special Commissioner, 

when so appointed, may sit with such Court, hear 

arguments on submitted cases, and write opinions 

thereon if directed to do so by the Court; and 

said opinions, if adopted by the Court, shall become thereupon the opinions of the Court. 

"(c) The Commissioner herein provided for, 

when appointed by the Governor, shall receive the 

same compensation as the regular Justices of the 

Court of Civil Appeals, and he shall serve until 

the death or expiration of the term of the disabled 

-3546- 
. 

Hon. Joe Resweber, page 11 (C-734) 

member; provided that in no event shall the term 

of service continue for a longer time than two 

(2) years under the same appointment; and provided 

further, that in the event the disabled Justice 

shall recover from his. disability, the term of such 

Special Commissioner shall immediately end. In the 

event of such recovery two (2) Justices of said 

Court shall certify such fact to the Governor, and 

such certificate shall be conclusive evidence of 

the recovery of said disabled Justice. 

"(d) Whenever any Justice of any Court of 

Civil Appeals is called or ordered into the active 

military service of the United States, it shall be 

the duty of the other two Justices of the Court of 

which such Justice is a member, to certify that 

fact to the Governor.. Upon receipt of such certificate by the Governor, he shall make proper investigation touching the matters therein contained, and 

if he shall determine that the facts contained in 

such certificate are true, and that a necessity 

exists therefor, he shall forthwith appoint a 

Special Commissioner having the requisite qualifications of a member of such Court to assist the same. 

Such Special Commissioner, when so appointed, may 

sit with such Court, hear arguments on submitted 

cases> and write opinions thereon if directed to do 

so by the Court; and said Opinions, if adopted by 

the Court, shall become thereupon the opinions of 

the Court. 

"(e) Such Special Commissioner, when so appolnted by the Governor, shall receive the same compensation as the regular Justices of the Court of Civil 

Appeals, and shall serve until the Justice who has 

been so called or ordered into the active military 

service of the United States is discharged from 

such military service, or until the expiration of 

the term of office of such Justice; provided that 

in no event shall the term of service of such Special 

Commissioner continue for a longer period than two 

(2) years under the same appointment; and provided 

further that when such Justice so called or ordered 

into the active military service of the United 

States is discharged from such active military service, the term of such Special Commissioner shall 

immediately end. When the active military service 

of such Justice shall have terminated, the other 

two Justices of such Court of Civil Appeals shall 

certify that fact to the Governor, and their certificate shall be conclusive evidence of the facts SO 

-3547- 
. . . 

Hon. Joe Resweber, page 12 (c-734) 

certified. 

"(f) Nothing In this Act shall be considered 

as giving any two (2) members of any Court of Civil 

Appeals, or the Governor, the power or authority 

to remove or suspend any member of the Court of 

Civil Appeals from office, or to in any manner 

interfere with him in his Constitutional rights 

and powers." Acts 1st C.S., 1892, p. 25; G.L. vol. 

lo, p. 389; Acts, 1936,,44th Leg., 3rd C.S. p. 2108, 

ch. 509, 0 1. Acts 1937, 45th Leg., p. 297, ch. 154, 

R 1; Acts 1941, 47th Leg., p.170, ch. 123, U 1. 

Article 1815, Vernon's Civil Statutes: 

"If all or any two members of any Court of Civil 

Appeals shall be disqualified to determine any cause 

in such court, th,at fact shall be certified to the 

Governor, who shall immediately commission the requisite number of persons, learned in the law, to try 

and determine said cause." Id. 

-3548- 
Hon. Joe Resweber, page 13 (c-734) 

APPENDIX B 

Article 1812, Vernon's Civil Statutes: 

"Each Court of Civil Appeals shall consist of 

a Chief Justice WIG two Associate Justices. A majority 

shall be a quorum for the transaction of business, 

and the concurrence of two Justices shall be necessary 

to a decision." Acts 1st C.S. 1892, p. 25; G.L, vol. 

10, P. 389. 

Article 1814, Vernon's Civil Statutes: 

"No person shall be eligible to the office of 

Justice of a Court of Civil Appeals, unless he be at 

the,time of his election thirty years of age or over, 

a resident of the district from which he is elected, 

and has been a practicing lawyer or a judge of a court 

of this State, or such lawyer and judge together, at 

least seven years." 

vol. lo, p. 389. 

Acts 1stC.S. 1892, p. 25; G.L. 

Article 1816, Vernon's Civil Statutes: 

"The term of each Court of Civil Appeals of the State 

of Texas shall begin on the first Monday in October 

of each year and shall continue in session until the 

first Monday in October the next succeeding year; provided that the Justices of each of said Co'urts shall be 

permitted to take a vacation of eight weeks during each 

year at such time as the Court may fix, during which 

period the Court shall not be adjourned but shall be 

in' recess and may be called together by the Chief 

Justice or by'the two Associate Justices in case business 

requiring immediate disposal should arise.' Acts 1897, 

p. 132; G.L. Vol. lo, p. 1186; Acts 1927, 40th Leg., 

p. 120, ch. 79, & 1; Acts 1927, 40th Leg., 1st C.S., 

P. 147, ch. 50, I 1. 

Article 1819, Vernon's Civil Statutes: 

"The appellate jurisdiction of the Courts of Civil 

Appeals shall extend to all civil caseswithin the limits 

of their respective districts of which the District 

Courts and County Courts have or assume jurisdiction 

with the amountin controversy or the jud ment 

dered shall exceed One Hundred Dollars ( $ 

ren100) exciusive 

of interest and costs; provided, however, that if any 

Court of Civil Appeals having jurisdiction of a cause, 

matter or controversy requiring immediate action shall, 

by reason of the illness or absence or unavailability 

-3549- 
. . . 

Hon. Joe Resweber, page 14 (c-734) 

of at least two (2) of the Judges thereof, be unable to 

take such immediate action, then the nearest available 

Court of Civil Appeals may take such action as may 

be required in regard to said cause, matter or controversy under such rules as the Supreme Court ma prescribe." 

As amended Acts 1957, 55th Leg., p. 1279, ch. % 26, 

% 1. 

Article 1.738, Vernon's Civil Statutes: 

"The Supreme Court shall, as early as practicable 

after the 1st day of January and the 1st day of June 

of each year, equalize, as nearly as practicable, the 

amount of business upon the dockets of the several 

Courts of Civil Appeals as of the close of business on 

the 31st day of December and the 31st day of May of 

each year by directing the transfer of cases from such 

of said Courts as may have the greater amount of business 

upon their dockets to those having a less amount of 

business. Said Court may, at any other time, order 

cases transferred from one Court of Civil Appeals to 

another, when, in the opinion of the Supreme Court, there 

is good cause for such transfer. And the Courts of 

Civil Appeals to which such cases shall be transferred 

shall have jurisdiction over all such cases so transferred, without regard to the District in which the 

cases were originally tried and returnable upon appeal. 

Provided thatthe Justices of the Court to which such 

cases are transferred shall, after due notice to the 

parties or their counsel, hear oral argument on such 

cases at the place from which the cases have been originally transferred. Provided further, that there shall 

be but one sitting for oral argument at the place from 

which cases are transferred for each equalization, and 

all cases so transferred at any one equalization must 

be orally argued at such sitting, or at the regular 

place of sitting of the Court to which said cases are 

transferred. All opinions, orders and decisions in such 

transferred cases shall be delivered, entered and rendered at the place where the Conrt to which such cases 

are transferred regularly sits ab the law provides. 

The actual and necessary traveling and living expenses 

of the Justices of said Courts in hearing oral argument at the place from which such cases are transferred 

shall be borne by the State, and for payment thereof 

the Legislature shall make appropriation." Acts 1895, 

E' 

79; G.L. vol. 10, p. 809; Acts 1909, p. 88; Acts 1927, 

0th Leg-., p. 115, ch. 76, B 1; Acts 1927, 40th Leg., 

1st a,,:s., p. 148, ch. 51, 8 1. Acts 1933, 43rd Leg., 

p. 380, ch. 151, fi 1; Acts 1941, 47th Leg., p. 762, 

ch. 476, 0 1. 

-3550-