Honorable Joe Resweber

CountyAttorney Harris County Harris County Courthouse Houston, Texas 77002

Dear Mr. Resweber: 

### 3, 

### 1966

OpinionX0. 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 letteras follows:

1,

. . . "Due to the recent constitutionalamendment JudgeWerlein will be required to retire in the latterpart of 1967, thus creatinga .vacancyto be filledby Governor Connally. As you no doubt know,, the Court of Civil Appeals for the First Supreme Judicial District continuallyhas a serious overload of caseswhich must be transferredout on equalization, a practice not enjoyedby the vast majority of the lawyers in the district.

. . .I
"'The question thatwe,propound is based upon the assumption that Chief Justice Robert W. Calvertwould assign him to servicewith the Court. The Houston Bar Associationwould like to obtain an opinion as to~whetheror not, If assignedby Judge Calvert, Judge Werlein can continue to serve so long
as his assignment Is effective as a "fourthmember" 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 Justicewould sit in all cases submitted, but the Associate Justicewould rotate so that therewould be no more than three members of the court as to any particular cause.'



### -3537-, .

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

ArticleV, Section 

### 6, of the Texas Constitutionprovides for the establishmentof Courts of Civil Appeals and contains, inpart, 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 shallbe electedby the qualifiedvoters of their respectivedistricts at a genera; election, for a La7 term of six years
. . .

vides: Article IV, Section 12, of the Texas Constitutionpro-

"Allvacancies in State or district offices, except members of the Legislature, shallbe filled unless otherwiseprovided by law,by appointment of the Governor,which appointment, if made during its session, shallbe with the advice and consent of two-thirdsof the Senatepresent. If made during the recess of the Senate, the said appointee, or some other person to fill such vacancy, shallbe 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 furthernominations, until a confirmation takesplace; But should thereby no confirmation during the session of the Senate, the Governor shall not thereafterappoint any person to fill such vacancywho has been rejectedby the Senate;but may appoint some other person to fill the vacancy until thenext session of the Senate or until the regular election to said office, should it soonor occur. Appointments to vacancies in offices electiveby the people shall only continue until the first general election thereafter."
ArticleV, Section 11, of the Texas Constitutionprovides inpart:

"No judge shall sit in any casewherein he may be interested,or where either of the parties may be connectedwith him, eitherby affinity or consanguinity,within such a degree as may be prescribedby law, or when he shall have been counsel in the case. When the Supreme Court, the Court of CriminalAppeals, the Court of CivilAppeals,
or any member of either, shallbe 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 requisitenumber of persons learned in the law for the trial and teterminationof 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 quotedportions of the Constitution,provides, in part, that:
"(1) Subject to the furtherprovisions of this Section, the Legislature shallprovide for the retirement and compensationof 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 (Emphasisadded.)
Section 7 of Article 6228b,Vernon's Civil Statutes, provides as follows:

"Judgesretired under the provisions of this Act shallbe judicial officers of the State, and during the time they are receiving retirementpay shallnot 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 fromwhich they retired, and if ‘ina District Court, under the same rules as provided by the present Administrative JudicialAct, and while so assigned, shall have all thepowers 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 **retire** ment allowance." (Emphasisadded.)

QUESTIONS PRESENTED

For convenience, the discussionof the referenced subjectmay be divided into three questions:

1. To ,whatextent, if any, does ArticleV, Section l-a, of the Constitutionmodify 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 shallbe
-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 vacanciesby 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 ArticleV, Section l-a of the Constitution?



### 3. Under what circumstancesmay 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 CivilAppeals?

DISCUSSIONAND AUTHORITIES

1. To what extent, if any, does Article V, Section l-a, of the Constitutionmodify those portions of the Conetitution quoted above which provide that each of the various Courts of Civil Appeals 'shallconsist of a Chief Jlustice and two Associate Justices"; that "said Justices shallbe electedby the qualifiedvoters of their respectivedistricts 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 certainwell-recognized rules of constitutionalconstructionwhich are applicable to the solution of this question:

(1

. . . "When one of several equally reasonable constructionswill give rise to fewer or less complex questions in its application, that construction will be adopted. So too, where one of two equally reasonable constructionswill more certainlyor to a greater degree effect the purpose of the provision, itwill be adopted." 12 Tex.Jur.2d 

### 368,Constitutional Law, Sec. 22 (andcases cited). 11

. . .
"In adopting a particular construction it is



### -3540-.

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

proper to inquire if the consequencesof following that Eonstructionwere those intendedby the people,

12 Tex.Jur.2d 369, ConstitutionalLaw, Sec. 23'(and cases cited).

"Allprovisions of the constitution in relation to the same subjectmatter must be construed together. State constitutionsare adopted as a whole, end a clause that, standingby itself,might seem of doubtful importmay 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 examinedwith a view to arriving at the true intent of each part." 12 Tex. Jur.2d 371, ConstitutionalLaw, Sec. 27 (andcases cited).

iise,sentence,or word frombeing superfluous, void, or insignificantwill be employed. "If there is an irreconcilableconflictbetween two provisions, on the principle that the jatter in position is the later expression of thewill of the people, the latterwill be given effect. And -- should there be a conflictbetween a general and a specialprovision 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 expressesa particular Intention incompatiblewith the general intention, the particular intention is to be considered in the nature of an exce tion.

. . . --Aitutional Law, ' 12 Tex.JuMd 37 , Sec. 28 (and cases citecij. -(Emphasis added.)

"In construinga constitutionalamendment, the courtwill lookboth 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 itbad been originally incorporated in the constitution. And a constitutionalamendment,being the last expression of the will of the people, will supersedeany conflicting constitutionalprovision. 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 constitutionalprovisions dealingwith the same subject. But if there is no inconsistencythe 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, ConstitutionalLaw, Sec. 29 (and cases cited). (Emphasisadded.)
That portion of ArticleV, Section l-a, of the Constitutionwhich is pertinent to this question is couched 'in general terms and does not seek to deal specificallywith those'ar,eas

coveredby the other constitutionalprovisions quotedherein; If the rules of constitutionalconstruction quoted above are applied to this question the result must be that ArticleV, Section l-a, inno way authorizesan 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 courtsby appointment and to make temporaryassignments 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 CivilAppeals even though all of the regular judges of such courtwere actively serving, the practical effect would be to increase the membership of the court and to at leastpartially nullify the requirement that the judges of such courts shallbe electedby the qualifiedvoters of the particular district.

2. What is the extent of the legislativepower to "provide for the retirement

. . .of Justices and Judges of the appellate courts

. . .and for their reassignment to active dutywhere and when needed" as grantedby ArticleV, Section l-a of the Constitution?

Adopting the constructiondiscussed above, Article V, Section l-a, gives the Legislature the power to provide for the reassignment to active duty on Courts of CivilAppeals of retired judges of appellate courts in all cases except in those specific instancesotherwiseprovided for by the Constitution and provided that no more than three judgesmay be actively serving at any one time on any Court of CivilAppeais. mcle V, Section l-a, in no way,purports to **limit** the authority of the regular judges of the.Courte of CivilAppeals nor to grant the 'Legislature ~powertomso limit their authority
or terms of offices; therefore, the legislativeauthority to make provision for the assignment of retired judges of appellate courts to active duty,on Courts of CivilAppeals 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 appointmentof retired appellate judges to active duty
on Courts of CivilAppeals is thus limited to those situations wherein a particular Court of CivilAppeals lacks a full complementof three judgesby reason of a vacancy or due to the disqualification,absence or inability to serve of a regularmember of such Court of CivilAppeals; such assignment power being limited insofar as it may conflictwith the constitutionalprovisions quoted above which provide forparticular situationsand being further limitedas to duration in that such exercise of the assignmentpower could not result in curtailing the authority or tenure of any regular judge of a Court of CivilAppeals 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 concernedwith making temporaryassignments of replacements for judges of the Courts of CivilAppeals who are disqualifiedor unable to serve. These statutes dealwith specific circumstanceswhereas the subsequently adoptedArticle 6228b, **Section** 7, gives the Chief Justice of the Supreme Court general assignmentpower. The governing rules of statutory constructionare as follows:

"Broadly speaking,a statutewill 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 statutewill be construed in the light of the constitution, tional law, the common law, internaand existing statutory law. More particularly, a statutewill be construedwith reference to the general system of legislationof which it forms a part.

. . . "A statutewill be construed so that itwill harmonizewith other existing law, unless its rovisions clearlymanifest a contrary intention. bus, where the literal language of one act conflictswith that of another, they shouldbe read together and harmonized, if reasonablypossible,
so as to ive effect to each of them. Jur.2d 27 , Statutes, Sec. 185 (andcasez3c%d).

8 (Emphasisadded.)

"It is a settled rule of statutory interpretation that statutes that dealwith the same general subject,have the same general purpose, or relate
-3543-.

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

to the sameperson 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 ruleproceeds
on the supposition that several statutes relating to one subject are governedby one spirit and policy, and are intended to be consistentand harmonious in their severalDarts and vrovisions. Thus, it applieswhere one statute deais with a subject in comprehensiveterms and another deals with a portion of the same subject In a more definiteway. But where a general statuteand a more detailed enactment are in conflict, the latte will prevail, regardlessof whether itwas 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 (Emphasisadded.) - r

d).

The assignmentpower of the Chief Justice is therefore coextensivewith the assignmentpower granted by the Constitution to the Legislatureas previously discussed except that it does not encompass those areas forwhich specificprovision has otherwisebeen made by statute. These specific statutes are set out in AppendixA.

Certain other statuteswhich indirectlybear on the questionherein presented but which it is felt do not influence the resolutionof these questionsare 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 CivilAppeals -3544-Hon. Joe Resweber,page 9 (C-734) only in those caseswhere the~particularCourt of CivilAppeals lacks a full complementof three judgesby reason of a vacancy or due to the disqualification,absence or inability to serve of a regularmember of such Court of Civil Appeals. Such assignmentpower is limited in the first instanceand as to duration insofar
as its exercise might conflictwith Article IV, Section 12,Article V, Section 6 and ArticleV, Section 11 of the Texas Constitutionand Articles 1813 and 1815 of Vernon's Civil Statutes;and such assignmentpower is further limitedas to duration in that any such assignmentwould be automatically terminatedby the return to active duty of the regular judgewhose 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 shallbe elected at the general election by the qualifiedvoters of their respectivedistricts. 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 drawingnumber one (1) shallhold for the term of two (2)years; those drawingnumber two (2) shall hold for a term of four (4)years; and those drawingnumber three (3) shallhold office for six (6) years. Each of said offices shallbe filledby election at the next general election before the respective terms expire; and the person elected shall thereafterhold 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 illnesswill 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 shallbe the duty of the other two Justices of the Court of which such incapacitatedJustice is a member to certify such facts to the Governor. Upon receipt of such certificateby the Governor,he shallmake proper investigationtouching the matters therein containedand if he shall determine that the facts contained in such certificateare true, and that a necessity exists therefor,he shall forthwithappoint a Special Commissionerhaving the requisite qualificationsof 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 Commissionerherein provided for, when appointedby the Governor, shall receive the
same compensationas 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 immediatelyend. In the event of such recovery two (2)Justices of said Court shall certify such fact to the Governor, and such certificate shallbe conclusive evidence of the recovery of said disabled Justice.
"(d) Whenever any Justice of any Court of CivilAppeals is called or ordered into the active military service of the United States, it shallbe 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 forthwithappoint a Special Commissionerhaving the requisite qualifications of a member of such Court to assist the same. Such Special Commissioner,when so appointed,may sitwith such Court, hear arguments on submitted cases> and write opinions thereon if directed to do so by the Court; and said Opinions, if adoptedby 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 Justicewho 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 longerperiod than two (2)years under the same appointment; and provided further thatwhen 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 shallbe conclusive evidence of the facts **SO** -3547-. . .

Hon. Joe Resweber,page 12 (c-734)
certified.
"(f) Nothing In thisAct shallbe considered
as giving any two (2)members of any Court of Civil Appeals, or the Governor, the power or authority to remove or suspendany member of the Court of CivilAppeals from office, or to in any manner interferewith him in his Constitutionalrights and powers." Acts 1st C.S., 1892,p. 25; G.L. vol. lo,p. 389; Acts, 1936,,44thLeg., 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 shallbe disqualified to determine any cause in such court, th,at fact shallbe certified to the Governor,who shall immediately commission the requisitenumber 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 CourtofCivil Appeals shall consist of
a Chief Justice WIG two Associate Justices. A majority shall be a quorum for the transactionof business, and the concurrence of two Justices shallbe necessary to a decision." Acts 1st C.S. 1892, p. 25; G.L, vol. 10, P. 389.
Article 1814, Vernon's Civil Statutes:

"Noperson shall be eligible to the office of Justice of a Court of CivilAppeals, unless he be at the,time of his election thirtyyears of age or over, a resident of the district fromwhich 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 CivilAppeals 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 succeedingyear; provided that the Justices of each of said Co'urtsshall 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 shallnot be adjournedbut **shall** be in' recess and may be called togetherby 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:

"Theappellate jurisdictionof 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 jurisdictionof 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 immediateaction, 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 Courtma 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 Courtmay, 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 CivilAppeals to which such cases shallbe transferred shall have jurisdictionover all such cases so transferred,without regard to the District inwhich the caseswere originally tried and returnableupon 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 fromwhich 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 transferredat any one equalizationmust 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 shallbe 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 travelingand living expenses of the Justices of said Courts in hearing oral argument at the place fromwhich such cases are transferred shallbe borne by the State, and forpayment 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, fi1; Acts 1941, 47th Leg.,p. 762, ch. 476, 0 1. -3550-