### ATTORNEY GENERAL OF TEXAS GREG ABBOTT September 2,2004

The Honorable G.E. “Buddy” West Opinion No. GA-0245 Chair, House Committee on Energy Resources Texas House of Representatives Re: Whether the courtrooms and offices of the Post Office Box 2910 40th and 378th District Courts may be located Austin, Texas 78768-2910 anywhere within the geographical boundaries of the City ofWaxahachie (RQ-0200-GA) Dear Representative West: You ask whether the courtrooms and offices ofthe 40th and 378th Districts Courts may be located at any place within the geographical boundaries of the City ofWaxahachie.’ 

### I. Background On December 20, 1849, the Texas Legislature enacted a statute creating Ellis County. See Act approved Dec. 20, 1849,3d Leg., R.S., ch. 18, 1849 Tex. Gen. Laws 454,454-55, reprintedin 3H.P.N. GAMMEL,THELAWSOFTEXAS~~~~-~~~~,~~ 16,16-17(Austin,GammelBookCo. 1898). Section 4 of the act provides, in relevant part:

[b]e it further enacted, That the commissioners, after having found the centre, and designated the places to be run for the county seat of said county of Ellis, shall cause an election to be held at the several precincts in said county, for the purpose aforesaid; and all persons having aright tovote forrepresentatives inthe State Legislature, shall be entitled to vote for the county seat; and the place receiving a majority of the whole vote, shall be the county seat of said county, and called Waxahachie. Id.54. Because there existed “no town orcommunity whatsoever atthe site ofthe county seat when that location was selected in 1849,” the election was held at the only residence, the cabin of E.W. Rogers?

‘Letter from Honorable G.E. “‘Buddy” West, Chair, House Committee on Energy Resources, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General (Mar. 18, 2004) (on tile with the Opinion Committee, also availablear http://www.oag.state.tx.us) [hereinafter Request Letter].

‘Brief from Honorable Joe F. Gmbbs, Ellis County and District Attorney, to Nancy S. Fuller, Chair, Opinion Committee, Office ofthe Attorney General, at 1(May 5,2004) (on tile with the Opinion Committee) [hereinafter Gmbbs Brief].The Honorable G.E. “Buddy” West - Page 2 (GA-0245)

On August 5, 1850, the Ellis County Commissioners Court organized Ellis County, and appointed a surveyor to “lay off the county seat, comprising sixty acres of land in apublic square, lots, streets and allies [sic] of size and dimensions as may be determined by the court.” Grubbs Brief, supra note 2, at 2. At the February 1851 term of the commissioners court, the surveyor reported that “the town map iscomplete and accompanies this report.” Id. Previously, onNovember 19,1850, Emory W. and Nancy Rogers had “deeded to Ellis County sixty-two acres which became the Original Town ofWaxahachie.” Id. The Ellis County Courthouse stands within the sixty-two acres deeded by Mr. and Mrs. Rogers. See id. You indicate that, “[wlhen restoration ofthe historic courthouse in downtown Waxahachie

. .began in 1999, the 40th District Court and the 378th District Court were located to a series of interconnected portable buildings nearby.” Request Letter, supranote 1, at 1. “Due to various circumstances, construction on the Justice Center has been delayed, leaving the courts in these temporary structures.” Id. Ithas been suggested that the district courts could be moved to another location within the City ofWaxahachie. See id. Some persons have raised concerns, however, that the courts may not be removed to any location outside the original city boundaries, i.e.,the sixty-two acres donated by the Rogers family. See id. You ask whether the 40th and 378th District Courts may locate their courtrooms and offices outside the original sixty-two acres, so long as they are located within the existing municipal boundaries of the City ofWaxahachie. See id. II. Relevant Law and Analvsis Article V, section 7 of the Texas Constitution, which provides for the creation ofjudicial districts, states that “[t]he court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law.” TEX.CONST.art. V, 57. By its plain language, this provision does not indicate that the term “county seat” is limited to the original boundaries ofthe city designated asthe county seat. InBridgmanY.Moore, 183S.W.2d 705 (Tex. 1944), the Supreme Court ofTexas said that “[olur Constitution and statutes require adistrict judge to hold court only at the county seat of the county, which means theplace where the courthouse is situated.” Id.at 708 (emphasis added). Although the term “place” could refer either to the precise physical location of the courthouse, we believe itmore likely that “place” denotes the city or town designated as the county seat. A subsequent case, Stinev. State,908 S.W.2d 429 (Tex. Crim. App. 1995), suggests the above construction: “[T]he constitutional requirement that court proceedings occur in the county seat is afundamental way to keep our most formal adversarial process open and public.” Id.at431. An even later case echoes this view:

Article V, section 7, requires courts to conduct proceedings “at the county seat of the county in which the case is pending, except as otherwise provided by law.” This requirement isjurisdictional. Garzav.State,974 S.W.2d 251,262 (Tex. App.-San Antonio 1998, pet. ref d); see alsoHowellv. Gauzy, 899 S.W.2d 690,699 (Tex. App.-Austin 1994, writ denied) (the Texas Constitution requires a district court to conduct proceedings only at the county seat of the county in which the case is pending).The Honorable G.E. “Buddy” West - Page 3 (GA-0245)

Abrief submitted tous contends, however, that the existing City ofWaxahachie isnot infact the county seat of Ellis County. The argument is as follows:

The territory designated as fhe county seat ofEllis County was not a municipality, but a 62-acre tract of unimproved pasture land. Waxahachie is not, therefore, a “municipality designated as the county seat” as a matter of historical certainty. No municipality known asWaxahachie existed atthe time ofcounty seat selection and could not have been. Only E. W. Rogers’ cowpasture, was so designated.

. The county seat chosen by the electors ofEllis County in 1850 is the 62-acre “Original Town” located in what is now downtown Waxahachie, and that is where district courts must conduct their proceedings until amajority of county electors determine otherwise, or the constitution is amended .3 This position has some support incase law. InPittsv.CampCounty,39S.W.2d 608 (Tex. Comm’n App. 1931,judgm’t adopted), the court, in construing the meaning of the term “county seat” in a deed, stated as follows:

[W]here an actofthe legislature selects acertain town ascounty seat, the board of county commissioners had no authority to move the county courthouse to aportion of the town not embraced within its limits when the act was passed, notwithstanding that act of adding territory to the town was passed after the locating act, and that the actual establishment ofthe courthouse occurred after the enlargement of the town. Id.at 616. This contention-that the “countyseat” ofEllis County isnot in fact the City ofwaxahachie, but only the original “62-acre ‘Original Town, “’ignores the reality that the City of Waxahachie is widely recognized as the county seat of Ellis County. See, e.g., TEXAS ALMANAC 173 (1999). Furthermore, the 1849 legislative act creating Ellis County did in fact declare that, whatever tract of land was selected by the voters would be the “county seat” ofEllis County and would be known as“Waxahachie.” See Act approved Dec. 20,1849,3d Leg., R.S., ch. 18,1849 Tex. Gen. Laws 454, 454-55, reprinted in 3 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897, at 16, 16-17 (Austin, Gammel Book Co. 1898). The briefer acknowledges that the City of Waxabachie became an

‘Brief from Mr. Fred Weldon, to Honorable Greg Abbott, Texas Attorney General, at 3-4 (May 2,2004) (on tile with the Opinion Conrmittee) [herein&r Weldon Brief].The Honorable G.E. “Buddy” West - Page 4 (GA-0245)

incorporated “municipality” in 1871. See Weldon Brief, supranote 3, at 3. Itis thus not clear that Pittsis strictly applicable to the situation posed here. Inanyevent, Pittswas issued in 1931. In 1949, the legislature added to the original language of Texas Constitution article V, section 7, the following clause: “except asotherwise provided by law.” TEX. CONST. art.V, 57,amendedbyTex. H.J:Res. 22,§ 1,5lstLeg., R.S., 1949Tex. Gen. Laws 1496,1496. In 1987, the legislature enacted such a law. Section 292.004 ofthe Local Government Code provides, in relevant part:

(a) The commissioners court ofacounty may provide, inside the municipality designated as the county seat, an auxiliary courthouse, ajail, aparking garage, afacility for district, county, and precinct administrative and judicial offices and courtrooms, or any facility related to the administration of civil or criminal justice

.

(c) Ifthe commissioners court designates the facility as an auxiliary courthouse, the facility may not replace the courthouse at the county seat. (d) A court required by law to hold its terms at the county seat may hold its terms atacourt facility provided under this section. (e) A district, county, or precinct officer required by law to maintain an office atthe county seat may maintain an office and keep official records at afacility provided under this section. The officer must also keep an office at the county seat.
TEX. tic. GOV’T CODE ANN. $292.004 (Vernon 1999). Finally, subsection (a) speaks directly to the issue of territory annexed by the municipality designated asthe county seat: “For purposes of this section, the municipality designated as the county seat includes territory added to the municipality after itbecame the county seat but excludes any part of the municipality outside the county.” Id. §292.004(a). Thus, if there is any doubt about whether article V, section 7 of the Texas Constitution permits acounty to locate the courtrooms and offices ofdistrict judges atanyplace within the county seat, section 292.004 ofthe Local Government Code removes that doubt. Even ifitcould be argued that the constitutional provision limits the location of the Waxahachie district courts to the city’s original sixty-two acres, article V, section 7also contains the language “except asotherwise provided by law.” By enacting section 292.004, the legislature has “provided” such alaw, and itisapplicable to the situation you pose so long asWaxahachie isthe “municipality designated asthe county seat.” SeeBennett v.State,82 S.W.3d 397,398 (Tex. App.-Austin 2002, no pet.) (“[A] district court ‘shall conduct its proceedings at the county seat of the county in which the case is pending, except asThe Honorable G.E. “Buddy” West - Page 5 (GA-0245)

otherwiseprovided bylaw.

...“‘) (citing Texas Constitution article V, section 7). In our view, there can be no doubt that the City ofWaxahachie, even ifconsidered only to comprise its original sixtytwo acres, isthe “municipality designated asthe county seat” ofEllis County. And section 292.004 makes abundantly clear that acounty seat includes allterritory within the existingboundaries ofthe municipality designated as the county seat. We conclude therefore that the 40th and 378th District Courts may locate their courtrooms and offices outside the original sixty-two acres of the City of Waxahachie, so long as those courtrooms and offices are located within the existing municipal boundaries of the city.The Honorable G.E. “Buddy” West - Page 6 (GA-0245)

SUMMARY The 40th and 378th District Courts may locate their courtrooms and offices outside the original sixty-two acres ofthe City ofWaxahachie, so long asthose courtrooms and offices are located within the existing municipal boundaries of the city. Yours very truly,

&A%?=-Attorney General of Texas

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee