The Attorney General of Texas
March 9, 1978
JOHN L. HILL
Attomey General
Honorable James W. Smith, Jr. Opinion No. II- 1132
County Attorney for Prio County
P. 0. Box v Re: Appointment of a special
Pearsall, Texas 18081 county judge,
Dear Mr. Smith:
You ask several questions about the appomtmerii of a -ial .county
judge, when the regular county judge is disabled for an *ended or indefiite
4K4- AW...suiu,
IQ) period of time. you note that the commissioners court has ,@#hority under
aPamlx.mQa5 article 30.03, section 2 of the Code, of Crimma! .Propedurp: to appoint a
al-
special oounty judge to bear oases, and ask whether he must be reappointed
for each case. Article 30.03 provides in part:,
S&ion .l. When the judge of the cougty court or.
oounty court at law, or of ag county c~@al court, @
disqualified in any criminal case pending in +he egurt Y
of which he is ju@s, the parties may by oonsent agree
uponaspecialjudgetetrysuchcase.~,..
SC&.2.~ ln the event a county judge or #+egu@r
judge of e county court et law created ina.com#y is
absent, or is for any cause disabled from presidhuy, e
special judge, who is an attorney, may be appointed by
the commissioners court of the county.
Sec. 3. The special judge so appointed must possess
those qualifications required of ‘the regular &dge of
the court and, when- appointed shall serve for the
period of time designated by the order of appointment
but in no event beyond that period of time the regular
judge is absent or disabled.
When a special judge is appointed pursuant to section 2, he serves for
the period stated in section 3. Section 3 does not limit the term of
appointment to a single case, and may be contrasted with section 1, which
provides for a special judge in any case where the regular judge is
p. 4616
Honorable James W. Smith, Jr. - Page 2 (H-1132)
disqualified. See also Attorney General Opinions H-1006 (1977); V-615 (1948). The
special judge appointed by the commissioners court pursuant to section 2 of article
30.03 substitutes for the regular judge in all his judicial duties, and is not limited to
criminal cases. Cf. Ex parte Thomas, 322 S.W.2d 532 (Tex. Crim. App. 1959)
(special judge eleca pursuant to civil statutes authorized to try criminal case).
You ask whether the special judge appointed pursuant to article 30.03, section
2, also serves as presiding officer of the commissioners court. Article 2342
provides that the county judge, when present, shall be the presiding officer of the
court. Prior opinions of this office have determined that a persons appointed as
special county judge pursuant to article 30.03 and similar statutes has only judicial
functions and does not act as a member of the commissioners court. Compare
V.T.C.S. art. 2341; see Attorney General Opinion O-5374 (1943). Therefore, the
comm’kwioners court will have to meet without the county judge or a substitute for
him during hi disability. Any three commissioners constitute a quorum for the
transaction of all business except levying a county tax.. V.T.C.S. art. 2343(e);
v+’ 215 S.W. 439 (Tex. 1919). ;If any member of the court is
incapacitated, the other four’members constitute a quorum for levying the tax if
‘%? incapacity ia certified as provided in article 2343.
You next ask how article ,30.03, section.2 of. the Code of Criminal Procedure
is to be reconciled with article 1933a, V.T.C.S. Article l933a applies only in
counties ‘with no statutory comitycourt et law or statutory probate court, in which
cl2 duties of the county ~court devolve upon the county judge. -Id. S l. Article 1933a
providesin part: ) ‘_
The county: judge may ‘et, any time, appoint a special
county judge, with respect to any pending matter, whether
ofcivil or’criminal~nature, in-accordance with the provisions
following: ,~
(c) If the county judge finds that good cause exists
~therefor, he shall appoint.~e .apecial county judge, et his
discretion, except: ‘(0 the person so appointed must be e
duly licensed.ettorney et ,lew :. . .
Id. S ‘2. A.speciel.judge may be appointed under thii provision even though the
&ular judge is not disqualified, absent;or otherwise disabled. The purpose of
article 1933a is stated in its emergency clause:
sec. 3. The purpose of this Act is to improve the
administration of justice in county courts, in view of the
problems inherent in the crowded condition of the dockets of
constitutional county courts, in the numerous and diverse
nature of other nonjudicial duties devolving upon county
p. 4617
Honorable James W. Smith, Jr. - Page 3 (H-1132)
judges, and in the fact county judges are not required to be
licensed attorneys although confronted by questions of
increasing legal complexity.
Acts 1975, 64th Leg., cb 475, at ~1252. See West Grange-Cove Consolidated
Independent School Diit. v. County Board of school Trustees of Orange County, 430
S.W.2d 65 (Tex. Civ. App.- Beaumont 1968, writ repd n.r.e.). Thus article 1933a
permits the appointme% of a special judge for e single pending case, when the
county judge deems it necessary due to the condition of the docket, the legal
complexity of the case, or other reason. It thus applies only when the regular judge
makes an appointment under it. Article 1933a and article 30.03b provide optional
solutions to different problems. They are not inconflict but ‘cumulative of one
another.
You next ask who presides over a probate matter when the county judge is
disabled or unwilling to act .m it. When a county judge is diiualified in e probate
matter, a special judge is appointed as provided in article 1932, V.T.C.S. When he is
disabled, the ‘special judge appointed pursuant to article 30.03, section 2 of the
Code of Crimlna,Procedure handles all judicial work, including probate matters,
arising during the period of time designated by the order of appointment. Code
Grim. Prcc. art. 30.03, S 3. Where the county judge is unwilling to serve, he may
appoint a special judge pursuant to article 1933a, provided all requirements of that
statute are met. In counties with no statutory probate court, county court et law,
or other statutory court exercisii probate jurlsdlction, the judge of the county
court may on his own motion transfer contested probate matters to the district
court and is required to do so on the motion of either’party. Prob. ‘Code S 5; _.
You finally ask whether article 1934, V.T.C.S., conflicts with article 30.03,
section 2, of the Code of Criminal Procedure. Article 1934 permits the election of
a special judge by the practicing lawyers of the court, see V.T.C.S. art. 1887, when
the county judge feila to appear et the time appointXfor court la absent, or
unable or unwllllng to hold court. Article 1934 thus overlaps with article 30.03,
section 2, of the Code of Criminal Procedure. However, we do not believe the
statutes are in conflict. Each provides a permissive, not mandatory procedure for
selecting a substitute judge. They can be regarded as alternate methods of
replacing,an absent or disabled county judge. If the commissioners court does not
exercise its authority to appoint e judge, the lawyers of the court may elect one.
Cf. Ford v. Simmons, 171S.W. 1077 (Tex. Civ. App. - San Antonio 1914, no writ) (two
jii+s appointed to replace one county judge).
SUMMARY
A special county judge appointed pursuant to article 30.03,
section 2 of the Code of Criminal Procedure need not be
reappointed for each case. The special county judge does
not serve on or preside over the commissioners court.
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Honorable James W. Smith, Jr. - Page 4 (K-1132)
Article 1933a, V.T.C.S., authorizes the county judge in
certain counties to appoint a special judge to handle a single
pending case. The judge appointed pursuant to article 30.03,
section 2 of the Code of Criminal Procedure may handle
probate matters. A county judge who is unwilliig to act in a
probate matter may appoint e special judge pursuant to
article 1933a, V.T.C.S., or transfer it to the district court
pursuant to section 5 of the Probate Code, provided the
requirements of the relevant statute are satisfied. Article
1934, V.T.C.S., and article 30.03, seotion 2 of the Code of
Criminal Procedure are not in conflict. Each provides a
permissible procedure for temporarily replacing an absent or
disabled county judge.
~.Opi@on Committee
jst
p. 4619