. - 

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 a hearing 

P. 0. Box 12265, Capitol Station before a Master 

Austin, Texas 78711 cmnes under Rule 

254 of the Texas 

Rules of Civil 

Dear Mr. Pipkin: Procedure? 

As executive director of the Judicial Qualifications Commission you 

have requested the opinion of this office on the question: 

“Does a hearing before a master pursuant 

to the Rules for the Removal or Retirement of 

Judges come under Rule 254 of the Texas Rules 

of Civil Procedure? ” 

Rule 254, appearing also as Art. 2168a, V. T. C. S., as amended by 

H. B. 264 by the 63rd Legislature, makes a continuance of the cause mandatory “[i]n all suits, either civil or criminal, or in matters of probate, 

pending in any court of this 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 is or will be in actual attendance at a Legislative 

Seseion. 

In our opinion, a Texas Rule of Civil Procedure providing for Legislative continuance has no application to a hearing before a Master in the 

course of proceedings conducted by the Judicial Qualifications Commission. 

Article 5, $ I-a (11) of the Constitution of Texas provides: 

“The Supreme Court shall by rule provide for 

the procedure before the Commission, Masters and 

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

the Supreme Court. Such rule shall afford to any 

person. . . against whom a proceeding is instituted 

to cause his retirement or removal, due process of 

law.. . . Due process shall include the right to 

notice, counsel, hearing, confrontation of his accusers, and all such incidents of due process upon 

proof of which a penalty may be imposed. ” 

The Supreme Court has exercised this constitutional authority by 

promulgating and adopting the Rules For The Removal or Retirement of 

Judges. Our courts have held that when the Constitution grants certain 

powers, and the means by which these powers can be exercised are prescribed, such means are exclusive of all 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, ~440 S. W. 2d 

660 (Tex. Crim. 1969). 

Since the Constitution has vested rule-making authority for the 

Commission in the Supreme Court, we believe the only rules having force -7 

and effect in proceedings before a master appointed by the Commission 

are those expressly adopted by the Court. 

Rule 15, “Extension of Time” in the Rules for the Removal and Retirement of Judges controls your question: 

“The chairman of the Commission may extend 

for pe’ridds not to exceed 30 days in the aggregate the 

time for fi,ling an answer, for the commencement of 

a hearing before the Commission, and for filing a 

statement of objections to the report of a master, and 

a master may similarly extend the time for the cornmencement of a hearing before him. ” 

In our opinion Rule 15 limits the extension of time for a hearing before 

a master to 30 days in the aggregate, and this extension is discretionary, 

not mandatory. 

p. 244 
r 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 of this State. ” A close 

reading of Rule 7 discloses that it was intended to govern. proceedings 

during a hearing before a Master, and not questions concerning when 

the hearing should take place or for how long a period a hearing may be 

postponed. This is the on:ly possible interpretation of the language 

11 

. . . the master, shall proceed with the hearing. ” 

SUMMARY 

Rule 254 of the Texas Rules of Civil Procedure 

does not require continuance of a hearing before a 

Master in proceedings instituted against a judge by 

the Judicial Qualifications Commission, where the 

attorney for the judge is in attendance at a Legislative Session. The Supreme Court has exercised its 

constitutional authority to promulgate rules governing procedure before the Commission or master and 

has limited continuances of a hearing before the master 

to a period not to exceed 30 days in the aggregate. 

Very truly yours, 

APPAOVED: 

flzln 4, P,LL--cY 

JOHN L. HILL 

A,ttorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 245