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# THE ADTTORNEY GENERAL OFTEXAS @P A~~~IN.TEXAR 78711

The Honorable Maurice S. Pipkin Executive Director Opinion H- 57 State Judicial Qualifications Commission Re: Whether ahearing P. 0. Box 12265, Capitol Station before a Master Austin, Texas 78711 cmnes under Rule 254 ofthe Texas Rules of Civil Dear Mr. Pipkin: Procedure? As executive director ofthe Judicial Qualifications Commission you have requested the opinion ofthis office onthe question: “Does ahearing before a master pursuant to the Rules for the Removal or Retirement of Judges come under Rule 254 ofthe Texas Rules of Civil Procedure? ” Rule 254, appearing also as Art. 2168a, V. T. C.S., as amended by H. B. 264 bythe 63rd Legislature, makes a continuance ofthe cause mandatory “[i]n all suits, either civil or criminal, or in matters ofprobate, pending in any court ofthis State and in all matters ancillary to such suits which require action by or the attendance of an attorney . . . ”when~it appears by affidavit that any party applying for the continuance, or any attorney for any party isor will be in actual **attendance** at a Legislative Seseion. Inour opinion, a Texas Rule of Civil Procedure providing for Legislative continuance has noapplication to ahearing before a Master inthe course of proceedings conducted by the Judicial Qualifications Commission. Article 5, $I-a (11)ofthe Constitution of Texas provides: “The Supreme Court shall by rule provide for the procedure before the Commission, Masters and

p. 243The Honorable Maurice S. Pipkin, page 2 (H-57)

the Supreme Court. Such rule shall afford to any person. . . against whom aproceeding is instituted to cause his retirement or removal, due process of law..
. . Due process shall include the right to notice, counsel, hearing, confrontation ofhis accusers, and all such incidents of due process upon proof ofwhich apenalty may be imposed. ” The Supreme Court has exercised this constitutional authority by promulgating and adopting the Rules For The Removal or Retirement of

Our courts have held that when the Constitution grants certain Judges. powers, and the means bywhich these powers can be exercised are prescribed, such means are exclusive ofall others. Crabb v. Celeste Independent Schoql Dist., 146 S.W. 528 (Tex. 1912); City of Fort Worth v. Howerton, 236 S.W. 2d 615 (Tex. 1951); White v. State, ~440S.W. 2d 660 (Tex. Crim. 1969). Since the Constitution has vested rule-making authority for the Commission inthe Supreme Court, we believe the only rules having force -7 and effect inproceedings before a master appointed by the Commission are those expressly adopted bythe Court. Rule 15, “Extension of Time” inthe Rules for the Removal and Retirement of Judges controls your question: “The chairman ofthe Commission may extend for pe’ridds not to exceed 30 days inthe aggregate the time for fi,ling an answer, for the commencement of ahearing before the Commission, and for filing a statement ofobjections to the report ofa master, and a master may similarly extend the time for the cornmencement ofahearing before him. ” Inour opinion Rule 15limits the extension oftime for ahearing before a master to 30 days inthe aggregate, and this extension is discretionary, not mandatory.

p. 244r The Honorable Maurice S. Pipkin, page 3 (H-57)

r‘ We have considered Rule 7 “Hearing” which requires that “[a]t the

time and place set for hearing, the Commission, or the master, shall proceed with the hearing as nearly as may be according to the rules of procedure governing the t:rial of civil causes ofthis State. ” A close reading of Rule 7discloses that it was intended to govern. proceedings during a hearing before a Master, and notquestions concerning when the hearing should take place or for how long a period ahearing may be postponed. This is the on:lypossible interpretation ofthe language 11

. . . the master, shall proceed with the hearing. ” SUMMARY Rule 254 ofthe Texas Rules of Civil Procedure does not require continuance ofahearing before a Master in proceedings instituted against ajudge by the Judicial Qualifications Commission, where the attorney for thejudge is in attendance ata Legislative Session. The Supreme Court has exercised its constitutional authority to promulgate rules governing procedure before the Commission or master and has limited continuances ofahearing before the master to a period not to exceed 30 days inthe aggregate. Very truly yours,

APPAOVED: 

# flzln 4, P,LL--cY JOHN L. HILL A,ttorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

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