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The Attorney General of Texas
April 19, 1983
JIM MATTOX
Attorney General
Honorable Frank Tejeda Opinion No. JM-25
Supreme Court Building
P. 0. BOX 12546
Chairman
Austin, TX. 76711. 2546 Committee on Judicial Affairs I&: Whether House Bill No. 332,
5121475-2501 Texas House of Representatives creating a new district court
Telex 9101674.1367 Austin, Texas 78769 for Henderson County violates
Telecopier 5121475-0266 article IV, section 12 of the
Texas Constitution
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 Dear Representative Tejeda:
2141742~6944
You have submitted questions about the constitutionality of House
4624 Alberta Ave.. Suite 160
Bill No. 332, Sixty-eighth Legislature, Regular Session (1983), which
El Paso, TX. 79905-2793 proposes, among other things, to remove Henderson County from the
9151533-3464 173rd Judicial District, create a new judicial district composed of
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only Henderson County, create the office of district attorney for the
newly created district, and divest the district attorney of the 3rd
~20 Dallas Ave.. Suite 202
Houston, TX. 77002-6966
Judicial District of his powers and duties In Henderson County.
7 131650-0666
Your first question relates to section 5 of the bill and whether
the legislature by statutory enactment can designate the person to
806 Broadway, Suite 312
fill a vacancy in the office of the judge of the newly created
Lubbock. TX. 79401.3479
606,747.5236
district court. Section 5 proposes the following:
On the effective date of this Act, the judge of
4309 N. Tenth, Suite 6 the 173rd Judicial District Court shall be
McAllen. TX. 76501.1665
commissioned as judge of the [new] Judicial
5121662.4547
District, provided, however, that he shall reside
in Henderson County on that date, and further
200 Main Plaza, Suite 400 provided that he shall resign from his position as
San Antonio. TX. 76205-2797 district judge of the 173rd Judicial District.
5121225-4191
It is generally accepted that the power to appoint persons to
An Equal Opportunity/ public office is by its nature an executive function, but the power of
Affirmative Action Employer appointment belongs where the people have chosen to place it by their
constitution or laws. Although the power of appointment is not per se
an executive function under the doctrine of separation of governmental
powers, if a constitution expressly confers it on the executive
department, the legislative department may not exercise the power of
appointment by legislative enactment. See, e. ., Springer v.
Government of Phillippine Islands, 277 U.S. 189 (1928); Myers V.
United States, 272 U.S. 52 (1926); Wittler V. Baumgartner. 180 Neb.
p. 108
Honorable Frank Tejeda - Page 2 (JM-25)
446, 144 N.W.2d 62, 71 (1966); Howell v. Howell, 213 Ark. 298, 208
S.W.2d 22. 25-26 (1948); Tucker v. State, 35 N.E.2d 270 (Ind. 1941);
Lasher v. People, 183 Ill. 226, 55 N.E. 663 (1899). The Texas
Constitution does expressly confer on the governor the power to fill
vacancies in certain offices by appointment.
Article II, section 1, of the Texas Constitution, divides the
powers of government between the legislative, executive, and judicial
departments and prohibits any of those departments from exercising the
power belonging to either of the other departments, except as
expressly provided by the Texas Constitution. Article IV, section 12,
provides that all vacancies in state or district offices, except
members of the legislature, shall be filled by appointment of the
governor, unless otherwise provided by law. Article V, section 28,
when construed together with article IV, section 12, relates
specifically to certain judicial offices and provides that vacancies
in the office of judges of the appellate courts and the district
courts shall be filled by the governor with no provision for providing
otherwise by law. The Texas Supreme Court has stated that if an act
creates a new district court, it creates a new office and an attempt
to appoint the judge by legislative action is null and void, as it is
not a legislative power to appoint district judges. It is an
executive power by the plain terms of the Texas Constitution. State
v. Manry, 16 S.W.2d 809, 812-813 (Tex. 1929). Accordingly. the
legislature cannot designate the person to fill the newly created
district court.
Under article XVI, section 14, of the Texas Constitution, which
works a self-enacting vacation of office on the failure of a district
officer to reside in his district, a person holds an office subject to
the constitutional right of the proper authority to alter the
territory in which he performs his powers and duties and thereby to
deorive him of his office before the exuiration of his term. See
Chambers v. Baldwin, 282 S.W. 793 (Tex. Comm’n App. 1926, judz
adopted); Prince v. Inman, 280 S.W.2d 779 (Tex. Civ. App. - Beaumont
1955, no writ), 47 Tex. Jur. 2d Public Officers, 97, at 8. If we
presume correctly that the present judge of the 173rd District Court
resides in Henderson County, we b&&e the office of the judge of
that court would become automatically vacant on the effective date of
House Bill No. 332 which removes Henderson County from the district.
Furthermore, notwithstanding the provisions of section 5 of the bill,
the legislature by statutory enactment cannot designate the person to
fill the vacancy in the office of the judge of either the newly
created district court or the 173rd District Court.
While House Bill No. 332 does not relate to criminal district
attorneys, you also asked if there is a difference in a statutory
enactment to designate a person to fill a vacancy in the office of a
criminal district attorney and such an enactment by the legislature to
p. 109
Honorable Frank Tejeda - Page 3 (JM-25)
designate a person to fill a vacancy in the office of a district
judge. The Texas Supreme Court has defined the term "criminal
district attorney" as a class or kind of district attorney and has
determined that a criminal district attorney is a district attorney
within the meaning of the constitution. Hill County v. Sheppard, 178
S.W.2d 261, 263 (Tex. 1944); Attorney General Opinions H-473 (1974);
M-1087 (1972). Therefore, with the exception of article V, section
28, of the Texas Constitution which relates only to judicial offices,
the same provisions apply to filling a vacancy in an office of a
district judge and filling a vacancy in an office of a criminal
district attorney.
Your second question relates to section 6 of House Bill No. 332
and whether the legislature may divest a district attorney of a
multi-county judicial district of his powers and duties in one or more
of the counties comprising the judicial district. Section 6 proposes
the addition of the following sections to article 322, V.T.C.S.:
sec. 3. The district attorney for the 3rd
Judicial District shall be elected by the citizens
qualified to vote of Anderson and Houston
Counties; the citizens of Henderson County shall
not participate in the election of the district
attorney for the 3rd Judicial District.
Sec. 4. The district attorney for the 3rd
Judicial District shall perform the duties imposed
and have all the authority conferred on district
attorneys by the general laws of the state within
the counties of Anderson and Houston. Such
district attorney shall not be responsible for
performing the duties of district attorney and
shall not have the authority conferred on district
attorneys within the county of Henderson.
Article V, section 21, of the Texas Constitution empowers the
legislature to provide for the election of district attorneys in
districts where the legislature deems it necessary but does not
require the creation of any offices of district attorney. See Reed v.
Triplett, 232 S.W.2d 169 (Tex. Civ. App. - Waco 1950, writ ref'd).
Article V, section 21, directs the legislature to regulate the duties
of district attorneys and county attorneys in the counties that are
included in a judicial district in which there is a district attorney.
Attorney General Opinion H-1127 (1978). In exercising its power to
allocate the duties of county attorneys and district attorneys,
including criminal district attorneys, in the counties that are
included in judicial districts for which it created the office of
district attorney, the legislature on numerous occasions has divested
a district attorney of his authority and constituency in one or more
p. 110
‘.
Honorable Frank Tejeda - Page 4 (JM-25)
counties See V.T.C.S. arts. 326k-23, 326k-32, 326k-36, 326k-45a.
326k-59,* 326k-75, 326k-76. 326k-80, 326k-81. 326k-83, 326k-85,
326k-86, 332b-2, and 332b-3. We believe that legislative enactment
divesting a district attorney of his authority and constituency In one
or more of the counties in a multi-county judicial district is
authorized by article V, section 21, and is consistent with the
legislature's own interpretation of that section of the constitution.
SUMMARY
The Texas Constitution provides that a vacancy
in the office of a district judge shall be filled
by appointment of the governor and the legislature
does not have the power to designate the person to
fill the vacancy. The Texas Constitution
authorizes the legislature to divest a district
attorney of a multi-county judicial district of
his authority and constituency in one or more of
the counties comprising the judicialfdistrict.
a
d &
Very t uly yours,
r\h, .
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton
p. 111