Untitled Texas Attorney General Opinion

October 25, 1973 The Honorable Dolph Briscoe Opinion No. H- 134 Governor of Texas State Capitol Re: Governor’s apppointive Austin, Texas power under $ $4 and 5 of Senate Bill 52, 63rd Legislature, creating Dear Governor Briscoe: new judicial districts You hatie asked this office for an opinion concer~ning your appointive powers under certain new judicial districts created by Senate Bill 52 of the 63rd Legislature, (Acts 1973, 63rd Leg., ch. 316, p. 731). You have referred us to Sections 4 and 5 of the bill, which amend Article 199a, Vernon’s Texas Civil Statutes: Sec. 4. ‘I ’ [Article 199a, Vernon’s Texas Civil Statutes], is amended by adding Sections 3. 041-3. 042 to read as follows: ‘Sec. 3. 041. The 213th Judicial District, composed of the County of Tarrant, is hereby created. ‘Sec. 3. 042. (a) The 214th Judicial District, composed of the County of Nueces, is hereby created. ‘(b) The 214th District Court shall give prefer- ence to criminal cases. ’ Sec. 5. ” ’ [Article 199a, Vernon’s Texas Civil Statutes], is amended by adding Section 3. 043 to read as follows: ‘I ’ Sec. 3. 043. (a) The 215th Judicial District, composed of Harris County, is created. p. 645 . - The Honorable Dolph Briscoe, page 2 (H-134) ” ’ (b) The 215th District Court shall give preference to civil matters. ’” “Sec. 7 . . . . “(c) The provisions of Section 4 of this Act take effect January 1, 1975. “(d) The provisions of Section 5 of this Act take effect January 20, 1975. ” Your letter states: “I respectfully request an offitiial legal opinion of your Office as to whether I have any appointive power in connection with appointment of judges to these courts and, if so, when is the proper time to make these appointments? ” Article 5, 5 28, of the Texas Constitution provides in part: “Vacancies ,’ in the office of Judges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, and Dist?ict’Courts’ shall be filled by the Gov- ernor until the next succeeding General Election. . . . ” Section 2. 005 of Article 199a, V. T. C. S. , provides: “The di,strict judge of each new district created by this Act shall be appointed by the governor in the manner prescribed by the constitution and laws of the State of Texas and shall serve in such capacity until the next succeeding general election and until his successor has been duly elected and has qualified. ” We believe that the Legislature has manifested a clear and unambiguous intention that the judicial offices established in the above quoted provisions shall not become effective until January 1, 1975, and January 20, 1975, respect- ively. Postponing the effective date of this legislation was clearly within the p. 646 . - The Honorable Dolph Briscoe, page 3 (H-134) province and power of the Legislature. Norton v. Kleberg County,231 S. W. 2d 716 (Tex. 1950); Rudco Oil & Gas Company v. LeMasters, 146 S. W. 2d 806 (Tex. Civ.App. , Esstland ,. 1940, error dism’d. jud car. ). No vacancy could~possibly occur in these officesuntil they become effective; and thus, they cannot be filled by the general election in 1974. It will be the authority and the duty of the Governor to make appointments to fill these offices when they become effective on January 1, 1975, and January 20, 1975, respectively, and to continue until the next general election, presumably in 1976. Concerning the proper time for making such appointments, pro- spective appointments to these judicial offices can be announced, but they cannot be effectively made until the offices exist, which will occur at the time these office become effective on January 1 and..January 20, 1975, respectively. Accordingly, your official appointments cannot be made until that time. . SUMMARY The judicial offices created by Section 4 of Senate Bill 52, 63rd Legislature, and made effective on January 1, 1975, and the judicial office created by Section 5 of Senate Bill 52, 63rd Legislature, and made effective on January 20, 1975, should be filled by appointment by the Governor, which appointment would only be effective at the time of the above-stated effective date of the offices. Attorney General of Texas Opinion Committee .- p. 647