Honorable Maurice S. Pipkin Opinion No. M-296
Executive Director
State Judicial Qualifications Board Re:Date on which terms of
Austin, Texas 78711 members of State Judicial
Qualifications Commission
Dear Mr. Pipkin: commence and terminate.
s
You have requested the opinion of this office con-
cerning the above matter, and, in this connection, have pro-
vided us with the following statement from which we quote, in
part:
"The State Judicial Qualifications Commission'
was established by Constitutional Amendment dur-
ing the 59th Session of the Legislature and was
adopted by the voters of the State in the General
Election in November, 1965. Relative to appoint-
ment and term of office the Constitutional Amend-
ment reads as follows:
"(2) There is hereby created the State
Judicial Qualifications Commission, to COnSist
of nine (9) members to wit: (i) two (2) Justices
of Courts of Civil Appeals; (ii) two (2) Dis-
trict Judges; (iii) two (2) members of the State
Bar, who have respectively practiced as such for
over ten (10) consecutive years next preceding
their selection: (iiii) three (3) citizens, at
least thirty (30) years of age, not licensed to
practice law nor holding any salaried public of-
fice or employment; provided that no person shall
be or remain a member of the commission who does
not maintain physical residence within this State,
or who resides in, or holds a judgeship within
or for, the same Supreme Judicial District as
another member of the Commission! or who shall
have ceased to retain the qualifications above
specified for his respective class of member-
ship. Commissioners of classes (i) and (ii)
above shall be chosen by the Supreme Court with
advice and consent of the Senate, those of class
(iii) by the Board of Directors of the State Bar
under regulations to be prescribed by the Supreme
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Hon. Maurice S. Pipkin, page 2 (M-296)
.-
Court with advice and consent of the Senate, and
those of class (iiii) by appointment of the
Governor with advice and consent of the Senate.
"(3) The regular term of office of Com-
missioners shall be six~ (6) years;' but the initial
members of each of classes (i), (ii) and (iii)
shall respectively be chosen for terms of four
(4) and six (6) years, and the initial members
of class (iiii) for respective terms of two (Z),
four (4) and six (6) years. Interim vacancies
shall be filled in the same manner as vacancies
due to expiration of a full term; but only for
the unexpired portion of the,term in question.
Commissioners may succeed themselves in office
only if having served less than three (3) con-
secutive years.
"Subsequent to that time, Commissioners
class (i) and (ii) were chosen by the Supreme
Court, those of class (iii) by the Board of
Directors of the State Bar, and those of class
(iiii) by the Governor. All were confirmed with
advice and consent of the Senate.
"The Legislature of the State of Texas,
60th Called Session, provided funds for the
establishment of an office and staff and set
forth the term of office as follows:
"Chapter 516 (H.B. No. 378)
"Section 13. The initial term of the mem-
bers of said Commission shall commence as of the
22nd day of May, 1967.
,I
. . .
II
. . . Under the law and facts as given to
you, when were the appointments effective, and,
therefore, when do such appointments terminate?"
Section l-a of Article V of the Constitution of Texas,
to which you refer, was adopted at the General Election on November
2, 1965. Quoting from the text of said Amendment:
"(2) There is hereby created the State
Judicial Qualifications Commission . . . ."
(Emphasis added.)
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,
Hon. Maurice S. Pipkin,,page 3 (M-296)
You have further advised that the official canvass
showing adoption of the constitutional amendment was November
19, 1965.
The effective date of creation of the Commis~sion
was November 19, 1965, and the initial terms of the positions
thereon began running from such date for respective two, four,
and six year periods. An amendment,is deemed to become a
part of the Constitution on the date of the official canvass
showing it has been adopted. 12 Tex.Jur.Zd 358, Const. Law, Sec.
8; Torres v. State, 161 Tex.Crim. 480, 278 S.W.Zd 853 (1955);
Rogers v. State, 163 Tex.Crim. 260, 289 S.W.Zd 923 (1956). *
A term of office is not necessarily measured by the date of
appointment thereto, but rather by the date set by the act
which brings such office into existence. Even though no
soecific date is mentioned bv such act. its terms mav be such.
as is the case here, that a definite date may be readily as- '
certained. Bruce v. Matlock, 111 S.W. 990 (Ark.Sup. 19,08);
Boyd v. Huntington, 11 P.2d 383 (Calif.Sup. 1932); People v.
Morris, 106 P.Zd 635 (Calif.Dist.App. 1940).
The primary question involved herein arose from the
passage on June 14, 1967, by the Legislature of a bill deal-
ing with the Commission, including a provision that the initial
terms commence May 22, 1967. The foregoing discussion having
shown that the initial terms began on November 19, 1965, an
obvious conflict arises with the provision in question. [On
page 384 of Boyd v. Huntington, supra, some discussion is
directed to the efficacy of establishing a set date for terms
of board members appointed to staggered-terms.] Three rules
of decision harmonize to settle this conflict, the first being
that, where a constitutional provision comes into irreconcilable
conflict with a statutory,provision, the former shall control.
12 Tex.Jur.2d 374, Constitutional Law, Sec. 30.
The second rule of decision holds that, where a term
of office is set by the Constitution, the Legislature may neither
shorten nor extend such term by statute. 47 Tex.Jur.Zd 58, Public
Officers, Sec. 38. And the third rule is likewise directed to
the conflict at hand, in holding that, where a controversy arises
as to the duration of a term of office, the earliest dates for
commencement and termination of the term should be adopted,,in
order to return the selective power to those exercising same at
the earliest opportunity. Wright v. Adams, 45 Tex. 134 (1876);
accord, Dobkins v. Reece, 17 S.W.Zd 81 (Tex.Civ.App. 1929, error
ref.).
You are hereby advised, therefore, that the State
Judicial Qualifications Commission came into existence on
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Hon. Maurice S. Pipkin, page 4 (M-296)
November 19, 1965, and the initial terms of office commenced
on that date, and terminate November 19, 1967, 1969, and 1971
respectively.
SUMMARY
The State Judicial Qualifications Commission,
created by adoption of Section l-a of Article V of
the Constitution of Texas, came into existence on
November 19, 1965. The initial terms of office
commenced on that date, and terminate November 19,
1967, 1969, and 1971, respective1
27
ney General of Texas
Prepared by Bill Corbusier
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Dyer Moore, Jr.
Bob Lattimore
Malcolm Quick
Bill Craig
A. J. CARUBBI, JR.
Executive Assistant
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