Honorable T. C. Chadick 

President 

Opinion No. C-268 

Texas Civil Judicial Council Re: 

400 Texas City Rail 

Constitutionality of 

submitted draft of a 

Texarkana, Texas bill to create the 

Texas Judicial RedisDear Mr. Chadick: tricting Board. 

You have requested an opinion of this office concerning 

the constitutionality of a submitted draft of a bill to create 

the Texas Judicial Redistricting Board. 

Section 1 of the proposed draft contains a declaration 

of policy. Section 2 contains definitions of terms used in the 

draft. Section 3 provides for the creation of the Texas Jud$- 

clal Redistricting Board. Section 4 r,eads as follows: 

"Duties of the Board. The Board shall 

apportion the State into judicial districts by 

designating the county or counties to be included 

in each of the judicial districts of the State, 

and shall subsequently apportion the State into 

judicial districts from time to time as the 

necessity therefor appears. Apportionment shall 

be on an affirmative vote of at least seven 

members of the Board, and shall be filed with 

the Secretary of State." 

Section 5 provides the conditions for apportioning 

the State into judicial districts by the Texas Judicial Redistricting Board. Section 6 provides: 

"Power of Legislature. The Legislature may, 

after an apportionment hereunder is filed with 

the Secretary of State but before the effective 

date thereof, by joint resolution of its Senate 

and House of Representatives adopted at a regular 

or called session of such Legislature, declare 

that such apportionment shall not be effective. 

If such a joint resolution is adopted by the 

Legislature, then such apportionment shall be of 

no force and effect, and shall be null and void 

without further actionen 

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Hon. T. C. Chadick, page 2 (C-268 ) 

Section 7 provides for the filing of an apportionment 

by the Board with the Secretary of State and provides that 

unless the Legislature has adopted a joint resolution declaring 

that such apportionment shall not be affected, the apportionment 

made by the Board "shall have the force and effect of law." 

Section 8 provides the postponement of effective date of the 

change of territory comprising the judicial district by apportionment. Section 9 provides: 

"Jurisdiction of County Courts. In any county 

of this State where the jurisdiction vested by 

general law in the county court, or any part thereof, 

has been transferred and vested in a district court, 

and where such county is removed, by apportionment 

hereunder, from all judicial districts in the district 

courts of which such county court jurisdiction had 

been vested, the said jurisdiction vested by general 

law in the county court shall be re-vested In the 

county court of such county, as of the effective 

date of such apportionment. All cases and proceedings within such county court's jurisdiction on 

the docket of any district court on such effective 

date, together with all records, documents and 

instruments on file in connection therewith, shall 

be transferred by the district clerk and the clerk 

of the county court of such county to such county 

court, and the district court shall exercise no 

further jurisdiction over them." 

Section 10 provides for transfer of records, documents 

and instruments required by an apportionment and Sections 11 and 

12 prescribe the powers of the courts to which such dockets are 

transferred. Section 13 provides for concurrent jurisdiction of 

district courts when a county is located in two or more judicial 

districts. Section 14 provides for the terms of court. Sections 

15, 16, 17 and 18 provide for duties of district clerks, sheriffs 

and constables, county and district attorneys and other officers 

of the court. Section 19 provides for quarters of the court. 

Section 20 contains a repealing clause; Section 21 a severability 

clause. 

The foregoing constitutes a summation of the provisions 

of the draft submitted to this office. It is noted that the 

territorial limits of the judicial districts of this State are 

left to the discretion of the Texas Judicial Redistricting Board 

within the limits prescribed by Section 5. It is further noted 

that Section 9 prescribes the jurisdiction of various county and 

district courts. It is our opinion that the provisions of the 

submitted draft constitute an unlawful delegation of legislative 

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Hon. T. C. Chadick, page' 3 (C-268 ) 

8 

ower . State v. Swisher, 

0 Tex.Crim b,ob 

17 Tex. 441 (1854) 

g s ii 680 

109 Tex. 11' 177'S!W3 &'(1915 , 

c-220 (1964). 

f 

1917). Ex p&-t.-' 

Attorney General's Opinion 

In Attorney General's Opinion C-220 (1964), this 

office stated: 

"It is our opinion that the power and duty 

of the Legislature to prescribe fees for the 

county clerks of this State is not such a 

power as may be delegated to the commissioners 

court contingent upon the written request of 

the clerk. It is neither impractical nor 

impossible for the Legislature to determine 

what fees are to be prescribed; quite the 

contrary, the Constitution places this duty 

on the Legislature and the Legislature has 

exercised this power throughout the years. 

It is therefore our opinion that the provisions of Article 3930a, Vernon's Civil 

Statutes, making the fees prescribed therein 

subject to the adoption of the Act by the 

commissioners court following request by 

the clerk, are unconstitutional, as being 

an unlawful delegation of legislative power. 

Since these provisions are not capable of 

being severed without changing the intent 

of the Legislature, it is our opinion that 

the entire Act must fall. You are therefore 

advised that the provisions of Article 3930a 

are invalid." 

It is our opinion that the principles of law announced in 

Attorney General's Opinion C-220 and the authorities cited 

therein are equally applicable to the subject matter of the 

submitted draft. 

Section 1 of Article V of the Constitution of Texas 

provides in part: 

11 . . . 

"The Legislature may establish such other 

courts as it may deem necessary and prescribe 

the jurisdiction and organization thereof, and 

may conform the jurisdiction of the district 

and other inferior courts thereto." 

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Eon. T. C. Chadick, page 4 (C-268 ) 

Section 7 of Article V of the Constitution of Texas 

provides in part: 

"The State shall be divided into as many 

judicial districts as may now or hereafter be 

provided by law, which may be increased or 

diminished by law. . . . The Legislature shall 

have power by General or Special Laws to make 

such provisions concerning the terms or sessions 

of each Court as it may deem necessary. 

" 11 . . . 

Section 22 of Article V of the Constitution of Texas 

provides: 

"The Legislature shall have power, by local 

or general law, to increase, diminish or change 

the civil and criminal jurisdiction of County 

Courts; and in cases of any such change of 

jurisdiction, the Legislature shall also conform 

the jurisdiction of the other courts to such 

change." 

Section 27 of Article V of the Constitution of Texas 

provides: 

"The Legislature shall, at its first session, 

provide for the transfer of all business, civil 

and criminal, pending in District Courts, over 

which jurisdiction is given by this Constitution 

to the County Courts, or other inferior courts, 

to such County or inferior courts, and for the 

trial or disposition of all such,,causes by such 

County or other inferior courts. 

In construing the provisions of Section 7 of Article V 

of the Constitution of Texas, the Court of Criminal Appeals 

stated in Pierson v. State, 177 S.W.2d 975 (Tex.Crim. 1944): 

"The Legislature was enjoined to divide the 

State into as many different districts as to it 

appeared proper. 

" . . . 

"It thus appears that: (a) District courts, 

that is, the courts themselves, the jurisdiction 

thereof, and the qualifications of the judges to 

-1291- 
Hon. T. C. Chadick, page 5 (c-268 ) 

preside over the courts, were defined and fixed 

by the Constitution; and (b) to the Legislature, 

and that body alone, was given the exclusive 

authority to create such courts, to fix the 

territorial jurisdictions thereof, and to 

determine the number of such courts authorized 

to exist in this state. The power to create 

district courts, of necessity, carries with 

it the equal power to destroy and this power 

of destruction is as exclusive in the 

lature as the power to create. . . .'I 

LegisThe powers and duties of the Legislature prescribed 

by the above-quoted provisions of the Constitution of Texas 

are not such powers as may be delegated to another agency. 

The submitted draft delegates to the Texas Judicial Redistricting Board created therein the power prescribed by the 

Constitution to the Legislature. You are therefore advised 

that the submitted draft of a bill to create the Texas Judi-, 

cial Redistricting Board is invalid. 

SUMMARY 

The submitted draft of a bill to create 

the Texas Judicial Redistricting Board with 

powers to apportion the State into judicial 

districts is unconstitutional and invalid 

since the same constitutes an unlawful delegation of legislative power prescribed by 

the provisions of Sections 1, 7, 22 and 27 

of Article V of the Constitution of Texas. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

Assistant 

JR:sj 

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Hon. T. C. Chadick, page 6 (c-268 ) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Hawthorne Phillips 

Pat Bailey 

Paul Phy 

W. 0. Shultz 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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