Untitled Texas Attorney General Opinion

1 . T&E ATTORNEY GENERAL OF TEXAS lbvember 7, 1968 IionorrbleRiabard IL Price Opinion MO. X-305 District Attorney Taylor County Courthouaa Abllane, Texas Rer Term of the Presiding Judge of the 7th Administrative Judicial .'District under Article 2008, 8~. 2, Vernon's Civil Stetutea, in view Dear ML. Prices of the stated facts. Your request for an opinion on-the abwe subject mstter states that on March 12, 1965, the District Judge of the 104th Judicial District was designated by the Gwernor of the State of Texas as Presiding Judge of the 7th Administrative Judicial District. Such appointmant was confirmed by the Texas Senate and that district judge qualified as Presiding Judge of the 7th Administrative District on March 30, 1965. 'You further state that he will retire as District Judge of the 104th Judicial District of Texas on December 31, 1968. In view of the foregoing stated facts you have inquired as to the expiration date of the term of the Presiding Judge of the 7th Administrative Judicial District under the prwisiona of Section 2 of Article ZOOa, Vernon's Civil Statutes, as amended in 1965. As origlnally enacted in 1927 by the 40th Legislature, Section2 of Article 20Oa, Vernon’s Civil Statute& provided '? as follartac *Sec. 2. Imaedlptely after this act becomes effective it shall be the duty *of the Governor, with the advice and consent of the LSenate, to designate one of the.regularly elected and commissioned district judges of each of said districts as Presiding Judge of the Administrative Judicial District. Upon.the death, resignation or the expiration of the . -1483- Hon. Richard M. Price, page 2 (n-305) term of office of such Presiding Judge, the Governor shell thereafter immediately designate a new Presiding Judge of the Administrative District, as in the first instance." In construing th'eforegoing provisions,,the Court in Eucaline Uedicine Comoanv vs. Standard Inv. Co., 25 S.W.28 259, 261 (Tex.Civ.App. 1930, err. ref.) expressly overruled the contention that the position of Presiding Judge of an Administrative Judicial District is an "office' within the ,meaning of Section 40,,Article XVI, and Constitution of Texaa,~ pertinently held: nNor is the position of preaiding judge of the administrative dia'trictan office that a' regularly elected district judge is forbidden by the Constitution to hold and exercise. Its functiona are'j~udicialin nature, are ,not in- consistent with',theconstitutional duties d&the district judge, and should. in our oninion.?be regarded aimolv aa aunaradded duties that the ", Leaialature waa,authori ed o reau e district + judaea to nerform.* (I&ha:is add::.) In view of the refusal by the Supreme Court'of the writ.of error in this case in 1930, this being after June 14, 1927, the judgment of the Court of Civil Appeals is deemed correct and the principlea of iaw declared in the opinion are deemed as correctly determined. Hamilton v. Emnire 6218& Fuel .gQ.. 134 Tex; 377,383,llO S.W.Zd'561,565 (1937). In view of the construction of Section 2, Article 200a, it was held in Attorney General,Oplnion Number S-09 (1953) that the term of a ipresiding judge of an administrative judicial, district is the same as his term of office as district judge and that the designation as Presiding Judge of the administrative district is not a sepsrate office but merely an extra duty that may be imposed upon a district judge, In 1965, the 59th Legislature amended Section 2 so that it now providesg -1484- , Hon. Richard W. Price, ,page 3 (&305) *Sec. 2. It shall be the duty of the Governor, with the advice and consent of the Senate, to designate one of the regularly elected district judges, or a retired district fudae. who voluntorilv retired from office. who.reaidea within the district. and who has certified his willincmeaa to aerve,'in each of said diatrititaaapreaidinq Judge of the Administrative Judicial District. Adeauate auartera for the ooeration of such District and orenervation of records shall be Provided in the courthouse of the countv in which such Preaidinq Judae reaidaq. Upon the death, resignation or expiration of the term of office of #pch Presiding Judge, $he Gwernor shall thereafter iammdiately a&oint*'or reappoint a PreaidLng,Judge of the Administrative District, as in the first instances above. Presidina Judaea of Administrative Judicial Districts shall serve for a term of four (4) Years from date of auallfication as su h administrative judqe . . .* (Rmphaaia aupplied'as to added language of amendment.) If the foregoing amendment to Section 2 of Article 200a haa,the effect of now creating an "office" as distinguished fram constituting "aunsradded duties that the~leaialature was authorized to reuuire district iudaea to oerform", Section 40 of Article XVI of the Constitution of Texas would prohibit a district judge from holding the additional affice. We do not believe the legislature had any such intention. Likewise, Section 30 of ArticLe XVI would limit the term of office to two years only, contrary to the four year term provided by the legislature. It is our opinion, however, that since the legislaturs did not change by the amsndatory language the duties of the presiding judge of the administrative district, the construction @Paced on Section 2 by the Court in Rucaline Medicine Co. vs. Standard Inv. Co., supra, remains equally applicable to Section 2, as amended. Therefore. no *office" within the meaning of Sections 30 and 40 of Article XVI of the Constitution of Texas was created, Rucaline medicine Co. vs. Standard Inv. Co., aupra; cf. Aldine Indeoendsnt School District vs. Stendlev, 154 Tex. 547, 289 S.W. 26 578 (19SS), We therefore are of the opinion that the legis- lature merely placed added duties on regularly elected district judges pursuant to provisions of Section 7 of Article v. Constitution of Texas, and provided for the Yreassignmsnt to - 1485- Ron. Richard H. Price, page 4 (d305) active duty where and when needed" of voluntarily retired district judges Qursuant to provisions of Section la of Article V, Constitution of Texas. Since Section 2 of Article 200a, Vernon's Civil Statutes,specifically provides that "upon the death, resignation or expiration of the term of,office of the presiding judge, the Governor-shall thereafter~lmmediately appoint or reappoint a QrSSiding judge of the administrative district as in the first instance above,* (Emphasis ours). You are advised that the words *term of office* as used in this statute mean the term of office as district judge, this being the only 'office" held. Upon certification of his willingness to serve after retirement, the same presiding judge may be reappointed to.carry out the' additional duties as presiding judge of the administrative district for a Qeriod of four years or the Gwernor may appoint another judge to so serve.' \ .i. SUMMARY The position ?f preeiding judge of an administrative judicial district does not conatitute~ an "office" within the meaning of Sections 30 and 40 of Article XVI of the Constitution of Texas, but is regarded simply as superadded dutiesthat the legia- lature was authorized to require district judges to per farm. Eucalins Wedicine~Co. vs. Standard Inv.Co,, 25 S.W.2d 259 $T~x.CIV.AQQ. 1930, err. ref.). The term of the QrSSiding judge of an administrative judicial district expires with his term of office as District Judge. Upon certification of his willingness to serve, he may be appointed for an additional period of four years. Article 2GOa, Section 2, Vernon"8 Civil Statutes. V&truly yours. At$rney General .of ffexaa 3.'. -1486- I . . Hon, Richard M. Price, page 5 (M-305) Pixpared by John Banks Assistant Attorney General APPROVED:. OPINION CCUMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman Arthur Sandlin Ralph Rash Harold Kennedy Jay Floyd ,A, J, CARUBBI, JR. Executive Assistant -1487-