# 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 HonorableJohn B. Holmes, Jr. Harris County District Attorney 201 Fannin, Suite 200 Houston, Texas 77002 OpinionNo. MW-536
Re: Whether article 1813(a), V.T.C.S., providing for terms of less than six years for appellate judges isunconstitutional
Dear Mr. Holmes:
You have requestedan opinion on the constitutionalityof article 1813(a),V.T.C.S.,with respect to the terms it establishes for court of appeals judges. ArticleV, section 6 of the Texas Constitutionas 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 respectivedistricts. 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 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 shall be filled by election at the next general election before the respective terms expire; and the person elected shall thereafterhold his office for six (6)years. Acts 1981, 67th Leg., ch. 291, at 761.

p. 1939L

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

The court of appealswas originallycreatedby articleV, 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 sectionwas amended to create the court of civil appeals. Therein the legislaturewas given authority to divide the state into supreme judicialdistrictsand to designate theplacewhere the courtwould hold its sessions. The term of office of the justices of these newly created courts was set at six years. However, the terms of officeware initially staggeredby a scheme provided by the last two sentencesof articleV, section6 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 shallhold 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. Constitutionalprovisionsrelating to the supreme courtand court of criminalappealsalso provide for staggeredterms. 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 Constitutionwas amended so that the courts of civil appeals could sit in sections. The previous election staggering schemewas 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 currentamendment is:

Said Justices shall be elected by the qualified voters of their respectivedistricts at a general election, for a term of sixyears... An examination of Senate Joint Resolution No. 36 reveals that there is no transitionprovision 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 Secretaryof State'sOffice, State of Texas. The election staggering scheme is noticeably absent from the present

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

constitution,andwe believe that the legislatureiswithout authority to vary the constitutionally mandated term of office through the amendmentof article 1813(a).
A similar problem exists with article 1812(c).V.T.C.S., which was also amendedby SenateBill 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 providedby law for Justices of the Courts of Appeals after the initial creationof 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 constitutionallydefective. Several controversieshave arisen concerning the term of office for judges. In 1947 the legislaturecreateda special district court in Orange Countywhose existencewas to terminateon August 31, 1951, "unless it shall hereafterbe extendedby an Act of the Legislature." In 1949 the legislaturemade 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 legislaturehad not created a new court but had merely continued it on a permanent basis. Therefore, the currentdistrict judgewas entitled to hold his office for a fouryear term since "[IIt

**is** clear that the intention of the 50th and 51st Legislatureswas to protect the constitutional term of office of the District Judge...." (Emphasisadded). Attorney General Opinion No. V-1055 at 5 (1950). See also Stateex rel.McCallv. Manry, 16 S.W.2d 809 (Tex. 1929); Manry v. McCall, 22 S.W.2d 348 (Tex. Civ. App. - Beaumont 1929,nowrit).
In Eades v. Drake, 332 S.W.2d 553 (Tex. 1960), the plaintiff sought to have his name placed on the ballot for the 1960Democratic Partyprimaryas a candidatefor district judge. Eades contendedthat 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 inpart:

At the first General Election after the creation of the one (1)district courtnumberedherein, 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. 1941Honorable 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 constitutionprovides for elective four-yearterms for judges of permanent constitutional district courtsand there canbe no elective two-yearterms for judges of said courtsby virtue of legislative enactment. (Emphasisadded). Eadesv. Drake, 332 S.W.2d 553, 556 (TM. 1960). Thus, the Texas Constitution prohibits the legislature from lengtheningor shorteningthe terms of offices for district judges set out in article V, section 7 of the Texas Constitution. Article V, section 6 of the Texas Constitutionprovides 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 ofwhether the constitutionalinfirmity discussedabove applies to the terms of office of the justicesalready inplace at the time of creationof the courtsof appeals. ArticleV, 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.... (Emphasisadded).
We hold that the above evidences an intent that the justices in place at the timeof theamendment continue tohold 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 constitutionallymandated at the time each original justice thereunder was elected. As the constitutionpresently stands,eachnewly 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 severabilityor savings clause, article lla,V.T.C.S., is applicable. This statuteprovidesas follows:

p. 1942. , HonorableJohn B. Holmes, Jr. - Page 5 (Mw-536)

section 1. Except to the extent otherwise specifically provided in a statute enacted previouslyor in the future,if any provisionof a statute or its application to any person or circumstance is held invalid, the invaliditydoes not affect otherprovisionsor applicationsof the statutewhich can can be given effectwithout the invalidprovision 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 legislaturewith regard to the severability of a statute. SenateBillNo. 265 is a lengthyand detailed statutereorganizingthe courts of appeals. Even though section 32(a) isunconstitutional,the rest of the statutecanbe given effectwithout 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 amendmentremain 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 sixyears after the first general election. TlS. Const. art. V, §6. The unconstitutionalprovision of SenateBill NO. 265 may be severed from the remainder of the bill.

MARK WtiITE AttorneyGeneral of Texas JOHN W. FAINTER,JR. FirstAssistantAttorneyGeneral

p. 1943.
HonorableJohn B. Holmes, Jr. - Page 6 (MW-536)

RICHARDE.'GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Linda L. Walden AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa JimMoellinger Linda L. Walden BruceYoungblood

p. 1944