Honorable T. C. Chadick

President Opinion No. C-268
Texas Civil Judicial Council Re: 400 Texas City Rail Constitutionalityof submitted draft of a Texarkana, Texas bill to create the Texas JudicialRedisDear Mr. Chadick: trictingBoard.

You have requested an opinion of this office concerning the constitutionalityof a submitted draft of a bill to create the Texas JudicialRedistrictingBoard.

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 RedistrictingBoard. Section 4 r,eads as follows: "Duties of theBoard. The Board shall apportion the State into judicial districtsby designating the county or counties to be included in each of the judicialdistricts of the State, and shall subsequentlyapportion the State into judicial districts from time to time as the necessity therefor appears. Apportionment shall be on an affirmativevote of at least seven members of theBoard, and shall be filedwith the Secretary of State." Section 5 provides the conditions for apportioning the State into judicialdistrictsby the Texas JudicialRedistrictingBoard. Section 

### 6 provides:

"Power of Legislature. The Legislaturemay, after an apportionmenthereunder is filedwith the Secretary of Statebut before the effective date thereof,by joint resolution of its Senate and House of Representativesadopted at a regular or called session of such Legislature,declare that such apportionment shallnot be effective. If such a joint resolution is adoptedby the Legislature, then such apportionment shallbe of no force and effect, and shallbe 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 theBoard with the Secretary of State and provides that unless the Legislaturehas adopted a joint resolution declaring that such apportionment shallnot be affected, the apportionment made by the Board "shallhave the force and effect of law." Section 

### 8 provides the postponement of effective date of the change of territory comprising the judicial districtby apportionment. Section 9 provides:

"Jurisdictionof County Courts. In any county of this State where the jurisdictionvestedby general law in the county court, or any part thereof, has been transferredand vested in a district court, and where such county is removed,by apportionment hereunder, from all judicialdistricts in the district courts of which such county court jurisdictionhad been vested, the said jurisdictionvested by general law in the county court shallbe re-vested In the county court of such county, as of the effective date of such apportionment. All cases and proceedingswithin such county court's jurisdictionon the docket of any district court on such effective date, togetherwith all records, documents and instruments on file in connection therewith, shall be transferredby 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 requiredby an apportionment and Sections 11 and 12 prescribe the powers of the courts to which such dockets are transferred. Section 

### 13provides for concurrent jurisdictionof district courtswhen a county is located in two or more judicial districts. Section 14provides for the terms of court. Sections 

### 15, 16, 17and 

### 18provide 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 constitutesa 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 RedistrictingBoard within the limits prescribed by Section 

### 5. It is furthernoted that Section 9 prescribes the jurisdiction of various county and district courts. It is our opinion that the provisions of the submitteddraft constitute an unlawful delegation of legislative -128$1-Hon. T. C. Chadick,page'

### 3 (C-268 )

8ower. State v. Swisher, 0 Tex.Crim b,ob 

### 17Tex. 

### 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 thepower 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 impracticalnor impossible for the Legislature to determine what fees are to be prescribed; quite the contrary, the Constitutionplaces this duty on the Legislature and the Legislaturehas exercised thispower throughout the years. It is therefore our opinion that the provisions of Article 3930a, Vernon's Civil Statutes,making the feesprescribed therein subject to the adoption of the Act by the commissioners court following requestby the clerk, are unconstitutional,as being an unlawful delegation of legislativepower. Since these provisions are not capable of being severedwithout changing the intent of the Legislature, it is our opinion that the entireAct 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 subjectmatter of the submitted draft.

Section 1 of Article V of the Constitution of Texas provides inpart:

11

. . . "The Legislaturemay establish such other courts as it may deem necessary and prescribe the jurisdictionand organization thereof, and may conform the jurisdictionof the district and other inferior courts thereto."

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Section 7 of Article V of the Constitutionof Texas provides in part:

"The State shallbe divided into as many judicial districts as may now or hereafterbe provided by law,which may be increased or diminishedby law.

. . .The Legislature shall have power by General or Special Laws to make suchprovisions concerning the terms or sessions of each Court as it may deem necessary. " 11

. . . Section 22 of ArticleV of the Constitution of Texas provides: "The Legislature shallhave power, by local or general law, to increase, diminish or change the civil and criminal jurisdictionof County Courts; and in cases of any such change of jurisdiction,the Legislature shall also conform the jurisdictionof the other courts to such change." Section 27 of Article V of the Constitutionof 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 givenby 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 CriminalAppeals stated in Pierson v. State, 177 S.W.2d 975 (Tex.Crim.1944):

"The Legislaturewas 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 qualificationsof the judges to

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### 5 (c-268)

preside over the courts,were defined and fixed by the Constitution;and (b) to the Legislature, and thatbody alone, was given the exclusive authority to create such courts, to fix the territorial jurisdictionsthereof, and to determine the number of such courts authorized to exist in this state. The power to create district courts, of necessity, carrieswith it the equalpower to destroy and thispower of destruction is as exclusive in the lature as thepower to create.
. . .'ILegisThe powers and duties of the Legislatureprescribed by the above-quotedprovisions of the Constitutionof Texas are not suchpowers as may be delegated to another agency. The submitteddraft delegates to the Texas JudicialRedistrictingBoard created therein the power prescribedby the Constitution to the Legislature. You are thereforeadvised that the submitted draft of a bill to create the Texas Judi-, cialRedistrictingBoard is invalid.

SUMMARY The submitteddraft of a bill to create the Texas Judicial RedistrictingBoard with powers to apportion the State into judicial districts is unconstitutionaland invalid since the same constitutesan unlawful delegation of legislativepower prescribedby theprovisions 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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### 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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