The Attorney General of Texas 

December 22, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin. TX. 78711. 2548 

5121475-2501 

Telex 9101874.1367 

Telecopier 5121475-0286 

1807 Main St.. Suite 1400 

Dallas, TX. 75201.4709 

2141742-8944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 799052793 

91515333484 

1220 Dallas Ave., Suite 202 

Houston. TX. 77002.8988 

7131850.0668 

806 Broadway, Suite 312 

Lubbock. TX. 79401-3479 

8061747.5238 

4309 N. Tenth, Suite S 

McAllen, TX. 78501.1685 

5121682.4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 78205-2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable John B. Holmes, Jr. 

Harris County District Attorney 

201 Fannin, Suite 200 

Houston, Texas 77002 

Opinion No. MW-536 

Re: Whether article 1813(a), 

V.T.C.S., providing for terms 

of less than six years for 

appellate judges is unconstitutional 

Dear Mr. Holmes: 

You have requested an opinion on the constitutionality of article 

1813(a), V.T.C.S., with respect to the terms it establishes for court 

of appeals judges. 

Article V, section 6 of the Texas Constitution as amended in 1981 

pursuant to S.J.R. No. 36, section 5, Acts 1979, Sixty-sixth 

Legislature, at 3224, authorized the legislature to reorganize the 

courts of civil appeals into the courts of appeals, with appellate 

jurisdiction of both civil and criminal matters within their 

respective districts. Pursuant to this authority, the Sixty-seventh 

Legislature passed Senate Bill No. 265, amending article 1813(a), 

V.T.C.S., to state: 

The Justices of each Court of 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 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. 

Acts 1981, 67th Leg., ch. 291, at 761. 

p. 1939 
L . 

Honorable John B. Holmes, Jr. - Page 2 (MW-536) 

The court of appeals was originally created by article V, section 

6 of the Texas Constitution, and had both civil and criminal 

jurisdiction. By 1891, however, the docket of the supreme court was 

so crowded that this section was amended to create the court of civil 

appeals. Therein the legislature was given authority to divide the 

state into supreme judicial districts and to designate the place where 

the court would hold its sessions. The term of office of the justices 

of these newly created courts was set at six years. However, the 

terms of office ware initially staggered by a scheme provided by the 

last two sentences of article V, section 6 as adopted in 1891: 

The terms of office of the Judges of each court 

shall be divided into three classes and the 

Justices thereof shall draw for the different 

classes. Those who shall draw class No. 1 shall 

hold their offices two years, those drawing class 

No. 2 shall hold their offices for four years and 

those who may draw class No. 3 shall hold their 

offices for six years, from the date of their 

election and until their succsssors are elected 

and qualified, and thereafter each of the said 

Judges shall hold his office for six years, as 

provided in this Constitution. 

Constitutional provisions relating to the supreme court and court 

of criminal appeals also provide for staggered terms. See Tex. Const. 

art. V, 552, 4; S.J.R. 36, $2, Acts 1979, 66th Leg., at3223; S.J.R. 

18, 94, Acts 1977, 65th Leg., at 3360. 

In 1978, art. V, section 6 of the Texas Constitution was amended 

so that the courts of civil appeals could sit in sections. The 

previous election staggering scheme was left in the constitution. 

When this section of the constitution was further amended in 

1981. the provision for staggering the elections was removed. The 

only reference to the terms of office in the current amendment is: 

Said Justices shall be elected by the qualified 

voters of their respective districts at a general 

election, for a term of six years... 

An examination of Senate Joint Resolution No. 36 reveals that 

there is no transition provision applying to the terms of office for 

the new justices of the courts of appeals. The original resolution 

actually signed into law specifically strikes out the previous plan 

calling for a drawing of lots and the staggering of the terms. _ See 

Resolutions and Vetoed Bills, 66th Leg., Regular Session, 1979, vol. 

XXIX, p. 8453 on file in Secretary of State's Office, State of Texas. 

The election staggering scheme is noticeably absent from the present 

p. 1940 
Honorable John B. Holmes, Jr. - Page 3 (MW-536) 

constitution, and we believe that the legislature is without authority 

to vary the constitutionally mandated term of office through the 

amendment of article 1813(a). 

A similar problem exists with article 1812(c). V.T.C.S., which 

was also amended by Senate Bill No. 265. This article states: 

When additional Justices of a Court of Appeals 

are elected and qualified, they shall draw lots 

for their terms of office, as provided by law for 

Justices of the Courts of Appeals after the 

initial creation of such courts. 

As noted above, the constitutional provision for drawing lots was 

deleted by the passage of Senate Joint Resolution No. 36. Thus, we 

believe this article is also constitutionally defective. 

Several controversies have arisen concerning the term of office 

for judges. In 1947 the legislature created a special district court 

in Orange County whose existence was to terminate on August 31, 1951, 

"unless it shall hereafter be extended by an Act of the Legislature." 

In 1949 the legislature made this special court permanent, and added 

that the present judge would hold his position "until the time for 

which he has been elected expires and until his successor is duly 

elected and qualified." In Attorney General Opinion No. V-1055 

(1950), it was held that the legislature had not created a new court 

but had merely continued it on a permanent basis. Therefore, the 

current district judge was entitled to hold his office for a four year 

term since "[IIt is clear that the intention of the 50th and 51st 

Legislatures was to protect the constitutional term of office of the 

District Judge...." (Emphasis added). Attorney General Opinion No. 

V-1055 at 5 (1950). See also State ex rel. McCall v. Manry, 16 S.W.2d 

809 (Tex. 1929); Manry v. McCall, 22 S.W.2d 348 (Tex. Civ. App. - 

Beaumont 1929, no writ). 

In Eades v. Drake, 332 S.W.2d 553 (Tex. 1960), the plaintiff 

sought to have his name placed on the ballot for the 1960 Democratic 

Party primary as a candidate for district judge. Eades contended that 

the legislature, which had created the district court in 1957, had 

expressly limited the first term of the new judge to two years. The 

Act stated in part: 

At the first General Election after the creation 

of the one (1) district court numbered herein, the 

Judge of the said court shall be elected for a 

term of two (2) years... 

Acts 1955, 55th Leg., ch. 510, 54, at 1481. The Texas Supreme Court 

held that: 

P. 1941 
Honorable John B. Holmes, Jr. - Page 4 (m-536) 

Insofar as the provisions of the statute are at 

variance with the terms of the constitution such 

provisions are ineffective and void. The 

constitution provides for elective four-year terms 

for judges of permanent constitutional district 

courts and there can be no elective two-year terms 

for judges of said courts by virtue of legislative 

enactment. (Emphasis added). 

Eades v. Drake, 332 S.W.2d 553, 556 (TM. 1960). 

Thus, the Texas Constitution prohibits the legislature from 

lengthening or shortening the terms of offices for district judges set 

out in article V, section 7 of the Texas Constitution. Article V, 

section 6 of the Texas Constitution provides for a six-year term for 

justices of the courts of appeals. Section 32(a) of Senate Bill No. 

265, which purports to give terms of less than six years to some 

justices, is at variance with article V. section 6 and is therefore 

null and void. See also Tex. Const. art. XVI, 930; cf. Jordan v. 

Crudgington, 231 S.W. 2d 641, 646 (Tex. 1950). 

We next address the issue of whether the constitutional infirmity 

discussed above applies to the terms of office of the justices already 

in place at the time of creation of the courts of appeals. Article V, 

section 6 states that: 

On the effective date of this amendment, the 

Justices of the present Courts of Civil Appeals 

become the Justices of the Courts of Appeals for 

the term of office to which elected or appoin= 

as Justices of the Courts of Civil Appeals.... 

(Emphasis added). 

We hold that the above evidences an intent that the justices in 

place at the time of the amendment continue to hold office until their 

terms normally are due to expire. This will leave the original 

justices in a staggered election formation. It should be emphasized 

that the election staggering scheme was constitutionally mandated at 

the time each original justice thereunder was elected. As the 

constitution presently stands, each newly added justice IS entitled to 

a six-year term from the time of the first general election after 

creation of any court of appeals or the addition of new judges to an 

existing court. 

We lastly turn to the question of whether, in view of our 

conclusion that the staggering scheme is unconstitutional, the whole 

of the statute fails. Since Senate Bill No. 265 contains no 

severability or savings clause, article lla, V.T.C.S., is applicable. 

This statute provides as follows: 

p. 1942 
. , 

Honorable John B. Holmes, Jr. - Page 5 (Mw-536) 

section 1. Except to the extent otherwise 

specifically provided in a statute enacted 

previously or in the future, if any provision of a 

statute or its application to any person or 

circumstance is held invalid, the invalidity does 

not affect other provisions or applications of the 

statute which can can be given effect without the 

invalid provision or application, and to this end 

the provisions of each statute are declared to be 

severable. 

sec. 2. Nothing in this Act affects the power 

or the duty of a court in an appropriate case to 

ascertain and effectuate the intent of the 

legislature with regard to the severability of a 

statute. 

Senate Bill No. 265 is a lengthy and detailed statute reorganizing the 

courts of appeals. Even though section 32(a) is unconstitutional, the 

rest of the statute can be given effect without it. 

SUMMARY 

The term of office for justices of the courts 

of appeals is fixed at six years. The election 

staggering scheme set forth in Senate Bill No. 

265, section 32(a), Acts 1981, Sixty-seventh 

Legislature, chapter 291, at 778 is at variance 

with the constitution and is therefore null and 

void. The terms of office for the justices in 

place at the time of the amendment remain the same 

as when they were members of the courts of civil 

appeals. The term of office of each new justice 

of the courts of appeals is set at six years after 

the first general election. TlS. Const. art. V, 

§6. The unconstitutional provision of Senate Bill 

NO. 265 may be severed from the remainder of the 

bill. 

MARK WtiITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

p. 1943 
. 

Honorable John B. Holmes, Jr. - Page 6 (MW-536) 

RICHARD E.'GRAY III 

Executive Assistant Attorney General 

Prepared by Linda L. Walden 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

Linda L. Walden 

Bruce Youngblood 

p. 1944