Hon. Jem6s Roulihan 

county editor 

orange county 

Orengo, Texw 

The extent :oi the prerent ten.oi.tho Diatr%ct Judge,.l28th 

fidf6ial Dlrta?%ot. lo 

-The 50th LqylslWtr&clrs~terT-the lZSth'Judiciel Dlatrlct ccmpored'of Ora~e~Qotmty adl prcvl~ed 

that it @hoold tw la e%xLatmcs frc& and after the qaraage o? 3.3~. 241, Bctr ,gOth Leg., B.3~. 1947, p..l98, until 

~. Bugwt 3l.j. 1952, ~unle~arr,~lt~.rhall herbifter k~ertended 

hy ark Aot of the Legl~UJtWQ~': !&a ~Qo~~rti61’8ppofntsd 

the Eon. Frmk Huam to be:Dirfrlot~Jud#b of the 128th 

Judicial Dirrtrict. In love&em, U&8, Judge Rust- was 

elected District Judge.oi the 128th Jlldi0i81 Distrlot. IO 

1.949 the.51at Legisiatun o~ntitimd the 128th.Dlatmct 

court aa a perhraent, regular dlrta+lot~cowt. 

"The 3tate shall~be dlylded :ibto ar.~raq 

judicl~l dirrtrlat@ aa mhy now or hom8ftter be 

provided by law, whtoh may k~lacmmed~or dlmlnLahed hy &xiv. For each d%atrWt there rhall 

be elwMxK,~~tm Qurlifled miter0 th6rcroi, 8t 

8 Genkml ILlection, a Judge* . . . who #l&all 

hold hla offLoe iOr the ?mrUd of ZOUP '(4L 

pars; . . ; 

: 

1 "The Dlstriut Judues mhc 'mej bwln ofclce when thllr '&endmnt ~tekebr'.WYeot shall 

hold t&&r omCeO until tbeV rWWOtiVe,. 
. 

Hon. James lioullhan, pege 2 (V-1055) 

"sea. 6. The 128th Judicial Dlatrlct of. 

Texas.18 hereby created and shell be composed of tb,Oounty of orange o&y. It shall bk 

knewn es the District Court of the 128th Judl~lal.Dlstrlct ',end shall be In exlstencb 

from imkaf~ter the paaaage of thla Act, untll,&ugmt 32, 1951, idnleaa' it ahtill'hebeafter lae~,exteadbdy an Act of tlae Leerlalatube. 

&Xl~porers~end duties by this Act 1 

mo&ed. upon,the.l28th Judl~lel D~ak% zizll 

expire oia said BItget 31, 1951, unlesr said 

court shallbe extended by a a@wwent'Aat 

of thk Legtilature;'mid upon aoph.srplratioo ,. 

all recorde, pleediagar- dqoumo@a a+.hllJ:', 

other matters then awlsting te cm pedalng In : 

ae'ld. 128th Judlclal Dla~trlct oi Texab,, ,Nclcdiug sll oaaem ,on the.docket bf reld,l28th Jodlclal~Dlatrlo.t Court shall W, tmiwfbrred 

vlthout.prejudice$o the C~auz+oS the Pint 

: Jpdloiel Dlatrlot,'ead thereeSter O~+enge Coonty.ahall be:8 parl:.oS said First Judl~lSl~Distzaat. rcwa11 purpcaea-., 

%c . 10. The Goveruor of Taixea , liaaed~ 

468, 

~Houae Bill 2L7,~.i&a:51at.ieg., R.3. 19?$, oh. 

p.869,:.e~Sectlve Oct?ber 5, 19?9, Provides lti part: 

n3ectIon 1. &it ; . '. Wit&&rary 

Dlatrlct Court of Orange County, Texas, known 

es the 128th Judlciel Dlatri& Court . . . 1s 

hereby continued 88 (1 peraekient; %egulbr dlstrlct aour dnd shall Otitinw:to be designated 

terma shall ex~lre under the%'dreabnt election or av~olntmeat." (Pmpheala added throughout.) 

Senate Bill 241, Acts 50th Leg., R.3. 1947, oh. 

,116, p. 198, effective April 23, 1947, provldea In part: 

letely.upon the takirrg,eSSect of thia,'Act, 

shell appoint a qwita??le e~.puallSled penbn 

to serve as Dlattict Judge OS the 128th Judlclel~:Dlatrlct .oS Brange Coimw, t?ho shall hold 

thla ofSloe until. the .next ge*raX elec$lon, 

end uutfl hla aucceaadi' la duly elected cud 

quallfled, and~ahall receive puca aala~~es 

uow provided Scr Dlatri?t, Judges Fder and by 

virtue of the general~laTrrr.oS thZ8 State." 
Eon. James HoulLhen, oege 3 (v-1055) 

88 the 128th Dlstrlct'Court aa composed of 

Orenge County. 

"360. 5. That the present Dfatrlct 

Judge of Orenge County, Texas, and of the 

128th Judlolel Dlatrlot, duly eletited and 

acting as such shell be the Dlatrlat Jud e 

of the said -126th Judlclal District In a n!i 

for Orange County,.Texea; tinti the' tlias 

for vhlch'he has been elbc?ed' e%tiiies aiid 

until his successor la duly elected and 

gumsi 6 d . = 

create 

number 

The Liglsleture hak the e~cluslve authority to 

dlakrlct courts ,ln this Stete end to dotemine the 

of~auch'courta authorlaed'to~exlat. 

177 3.U.2d 975 (Tex.Crlm.1944).- However, =Yishla 

Dibtrlot Judgea.~ea fixed by tiie Conatltutle~~cennot be ahoPtened.ar, ~extended by the Legl~leture: ..3tate 

16 s.W.ZU~ 8o9~(Tex.Coam;AEiX9??9); 

qiote 

26-348 (Te%Olw.&p.1929). We 

the Solloving Sroa the CoSmitSdlOn of A~ppeala oplnion ins the Henr~aas~~ et'pege 813: 

.: 

. 

*if the act operetea ad~ea to create 

a new.diatr$ct, thed It creete&e new ofSloe, mud the part of section 5 the~edf 

whloh attemptdd to appoint Judge Uaniy aa 

jtige .thetior by leglalatiw ~'eotlon was null 

and void, es It la not a legirletZv& power - 

to eppolnt dlatblct jydgea. ,@uoh la an executive power and la so expreaaly:by the 

pleln term ~0s our ConatltutZon. . . . B0wever, as .above atated;wedo hot think that 

the Ott emoted new~dlatrlcta at 811, but 

mevly m&ganla&d theold dlatrUta. 

"It la provided by aeoflon T of ertlale ff,oS the Texea state Comtltut~on that: ~. 

"W~e~atete ihell.be d'lrlded Into as ',, 

many judlclel dlstrlcts,aa may npw or hereester be provided by law, which may be lacreased or dlmlnlahed by law. For eech 

dlatrl~t there ohs11 be elected.by the quallfled voters thereof, at a general eleotlon, 

a judge, who shell be e oltlaen l + l who. 

shall hold his off106 for a ~perlod.oS row 

yeerr. * * ** 
Hon. James Houllhen, page 4 (V-1055) 

J 

"IS the Leglalature oreeted no new 

dlatrlct, end did not abolish the ninth 

district then It follows that Judge N8rU-y 

having been elected judge of the-Blnth~ dlatrlct ln November 1924 at th6 @ii&al election of that year, for a Sour-year term, was 

entitled to such full Sour-year term under 

the Conatltutlon end that the part of seatlon 5 of the act of 1925 which attearpted 

to shorten the tern and cause 8 new election in 1926 for such oSSlce~waa In plain 

violation of the express proylalon of our 

Constitution above quoted and la null and 

void. However, this does not a?rect the 

velldlty 0s the balance 0s the eot. 

*It Sollowe Srom whet we have aeld 

thet there la no doubt under the Gonstltutlon and low8 of this Stete Judge l&e- was 

,di~ly end coaatlt~tionally elected judge of 

said mlnth dlstrlot In 1924 for a till So&- 

yeer term, edt that, said dlatrlat'mt herlng been abollahed, he was entItled to,aerve 

out sold full term. It further Scllowa that 

Judge IIcCell wea duly.end ao~tltutlonally 

elected to said oSSlce ln Roibaber, 1928, 

end la now entitled to quallSy as auah end 

aaaume Its duties and receive its emoluments." 

W6 are S~lll8~ with State V: 

preme Court or Indlaaa, 51 H.E.T? %'I1 IE 

The~atatutea we= meterlally differ&t iii&. 

Salature hod created a SpeOlSl couz% +hlah,.by the Bet, 

was deSlnltely to expire on a partlculer date. A judge 

warn elected to that Cow& for the tena which existed. 

ThereeSter the Legislature enacted enother &et&e purporting to oontlnue the Court. The Izidlana Suprem 

Court~held that the people could not hove intended to 

elect the jdage peat the dote .oi~ which the Court wea 

to expire tuder the statute existing at the time of 

the electl~n. It wea held that the Governor (not the 

Leglaleture) had the power to Sill the vecancy which 

existed on the expiration OS the tim OS oSSlQ6 om the 

date fixed ln the Leglalatlve Act. 

Here, however, the statute existing St the 

time of the judge's election provided that the court 

was to exist to a certain date %hl&aS' W bhalX hotiafter be extended by the Lenlsleture." The people at 
Hon. Jemea Houllhan, page 5 (V-1955) 

the time of the judge's election therefore Intended to 

riii the 0SSlce for whatever term there might be for the 

Court, not to exceed Sour yean. !I!&6 Legislature expressly continued the Court end gave It 8 permanent atatus; It dld note oreate a new one. 

It la oleer that the intention of the 50th and 

51at Legislatures wea to protect the cormtitutlonal tom 

or ofsloe or the District Judge 61 the 128th Judlolel 

Dlatrlct. !l%e 50th Leglaleture provlded la Senpte Bill 

241 that the Qovernor was to appoint a Dlatrlot Judge of 

the 128th Judlolal Dlatrlct who wea to serve as District 

Judge "until his aucoeaaor la duly elected and quellSled." 

The election referred to in (lenate Bi11241 wea held in 

lovemIter, 1948, rrd the term of offloe of the 'eleoted 

judge was to 8egln January 1, 1949. The 51at.Le lalettme porided that the District Jtige OS the 128 & h Judlolal Dlatrlct so elected shell be the District Judge of 

the 128th Judlolel Dlatrlct "untll~the 6lme for vhloh he 

has been elected expires and.hl~'aucceabo~ lb'duly eleoted and ~uallfled.' Since the ud 1 t d's' ml1 

6 general election n ~~eZ~,e~95~ rpa onw 

g:?l+or term bzil"~Januaryl,l3"(~~~~ 

147 Tex. 248, &5 3.W.2d 325, .f9k8 , the 

g 8 ature is preatmed to.know that the awceeaor of 

the Dlatrlot Judge of the 128th J~iclel Dlatrlot could 

not be elected until the Qenerel XUKitlon In~Iiovember, 

1952. Therefore, It la olear that it was the lntetatlon 

of the Slat Legislature that the term of oSSlce of the 

Dlatrlct Judge of the 128th Judlclal Dlatrlot would not 

emlre until Deoember 31, 1952. 

-, 

Allg other oonatructlon would lead to o&eequencea clearly not letended by the Leglalatme. IS we 

~ahould hold that the term of oSSlc6 explmea on August 

~' 31, 1951, thevacenoy that would cccur on thet dote 

could not be fllled by en ele6tloia held during the yeer 

1951 for veoanclea occ~l~~1; it .cotald only be 

sill* by executive appointment. lox. Const., Prt.Iv, 

3ec.12. Such construction would render meanlngleas 

that portion of House Bill 217 of the Slat LegZaleture 

which provldea that "the present Dlatrlot Judge . . - 

shell be District Judge of the 128th Judlolel Dlatrlct 

in and for Orange County until the time for which he 

has been electeii explreb end until his ewo6aaor la duly 

elected and ~u8llSled." 

It la therefore our opinion that the tern of 

the present Dlatrlct Judge wlll expire on December 31, 
Bon. Jemea Roullhan, page 6 (V-1055) 

1952. This oonatruotlon of the two acts in queatlos 

gives 6SSect. to t* plain Intention OS the Legislature. 

aImmARY 

The term or office of the Dfatrlct 

Judge of the 128th Judlclal.Dlatrlot mmYorpa very truly,,' 

: ApPBoVSD: 

J.'X. Devla, Jp. 

county ~~rreira mwiaion 

PRIGB.DAUSI& 

Attorney @enera 

JoeOreenhlll 

Fir+ 1)~alatmnt 

JB:bh:mf 

Aa8latent