Untitled Texas Attorney General Opinion

Honorable T. C. Chadick Opinion No. C-268
President
Texas Civil Judicial Council Re: Constitutionality of
400 Texas City Rail submitted draft of a
Texarkana, Texas bill to create the
Texas Judicial Redis-
Dear Mr. Chadick: tricting Board.
You have requested an opinion of this office concerning
the constitutionality of a submitted draft of a bill to create
the Texas Judicial Redistricting Board.
Section 1 of the proposed draft contains a declaration
of policy. Section 2 contains definitions of terms used in the
draft. Section 3 provides for the creation of the Texas Jud$-
clal Redistricting Board. Section 4 r,eadsas follows:
"Duties of the Board. The Board shall
apportion the State into judicial districts by
designating the county or counties to be included
in each of the judicial districts of the State,
and shall subsequently apportion the State into
judicial districts from time to time as the
necessity therefor appears. Apportionment shall
be on an affirmative vote of at least seven
members of the Board, and shall be filed with
the Secretary of State."
Section 5 provides the conditions for apportioning
the State into judicial districts by the Texas Judicial Redis-
tricting Board. Section 6 provides:
"Power of Legislature. The Legislature may,
after an apportionment hereunder is filed with
the Secretary of State but before the effective
date thereof, by joint resolution of its Senate
and House of Representatives adopted at a regular
or called session of such Legislature, declare
that such apportionment shall not be effective.
If such a joint resolution is adopted by the
Legislature, then such apportionment shall be of
no force and effect, and shall be null and void
without further actionen

-1288-
 - -

Hon. T. C. Chadick, page 2 (C-268 )

Section 7 provides for the filing of an apportionment
by the Board with the Secretary of State and provides that
unless the Legislature has adopted a joint resolution declaring
that such apportionment shall not be affected, the apportionment
made by the Board "shall have the force and effect of law."
Section 8 provides the postponement of effective date of the
change of territory comprising the judicial district by appor-
tionment. Section 9 provides:
"Jurisdiction of County Courts. In any county
of this State where the jurisdiction vested by
general law in the county court, or any part thereof,
has been transferred and vested in a district court,
and where such county is removed, by apportionment
hereunder, from all judicial districts in the district
courts of which such county court jurisdiction had
been vested, the said jurisdiction vested by general
law in the county court shall be re-vested In the
county court of such county, as of the effective
date of such apportionment. All cases and proceed-
ings within such county court's jurisdiction on
the docket of any district court on such effective
date, together with all records, documents and
instruments on file in connection therewith, shall
be transferred by the district clerk and the clerk
of the county court of such county to such county
court, and the district court shall exercise no
further jurisdiction over them."
Section 10 provides for transfer of records, documents
and instruments required by an apportionment and Sections 11 and
12 prescribe the powers of the courts to which such dockets are
transferred. Section 13 provides for concurrent jurisdiction of
district courts when a county is located in two or more judicial
districts. Section 14 provides for the terms of court. Sections
15, 16, 17 and 18 provide for duties of district clerks, sheriffs
and constables, county and district attorneys and other officers
of the court. Section 19 provides for quarters of the court.
Section 20 contains a repealing clause; Section 21 a severability
clause.
The foregoing constitutes a summation of the provisions
of the draft submitted to this office. It is noted that the
territorial limits of the judicial districts of this State are
left to the discretion of the Texas Judicial Redistricting Board
within the limits prescribed by Section 5. It is further noted
that Section 9 prescribes the jurisdiction of various county and
district courts. It is our opinion that the provisions of the
submitted draft constitute an unlawful delegation of legislative

-128$1-
Hon. T. C. Chadick, page'3 (C-268 )

ower . State v. Swisher, 17 Tex. 441 (1854)
8 0 Tex.Crim b,ob g s ii 680 1917). Ex p&-t.-'
109 Tex. 11' 177'S!W3 &'(1915 f, Attorney General's Opinion
c-220 (1964).
In Attorney General's Opinion C-220 (1964), this
office stated:
"It is our opinion that the power and duty
of the Legislature to prescribe fees for the
county clerks of this State is not such a
power as may be delegated to the commissioners
court contingent upon the written request of
the clerk. It is neither impractical nor
impossible for the Legislature to determine
what fees are to be prescribed; quite the
contrary, the Constitution places this duty
on the Legislature and the Legislature has
exercised this power throughout the years.
It is therefore our opinion that the pro-
visions of Article 3930a, Vernon's Civil
Statutes, making the fees prescribed therein
subject to the adoption of the Act by the
commissioners court following request by
the clerk, are unconstitutional, as being
an unlawful delegation of legislative power.
Since these provisions are not capable of
being severed without changing the intent
of the Legislature, it is our opinion that
the entire Act must fall. You are therefore
advised that the provisions of Article 3930a
are invalid."
It is our opinion that the principles of law announced in
Attorney General's Opinion C-220 and the authorities cited
therein are equally applicable to the subject matter of the
submitted draft.
Section 1 of Article V of the Constitution of Texas
provides in part:
11. . .

"The Legislature may establish such other
courts as it may deem necessary and prescribe
the jurisdiction and organization thereof, and
may conform the jurisdiction of the district
and other inferior courts thereto."

-1290-
Eon. T. C. Chadick, page 4 (C-268 )

Section 7 of Article V of the Constitution of Texas
provides in part:
"The State shall be divided into as many
judicial districts as may now or hereafter be
provided by law, which may be increased or
diminished by law. . . . The Legislature shall
have power by General or Special Laws to make
such provisions concerning the terms or sessions
of each Court as it may deem necessary.
" . . .11

Section 22 of Article V of the Constitution of Texas
provides:
"The Legislature shall have power, by local
or general law, to increase, diminish or change
the civil and criminal jurisdiction of County
Courts; and in cases of any such change of
jurisdiction, the Legislature shall also conform
the jurisdiction of the other courts to such
change."
Section 27 of Article V of the Constitution of Texas
provides:
"The Legislature shall, at its first session,
provide for the transfer of all business, civil
and criminal, pending in District Courts, over
which jurisdiction is given by this Constitution
to the County Courts, or other inferior courts,
to such County or inferior courts, and for the
trial or disposition of all such,,causesby such
County or other inferior courts.
In construing the provisions of Section 7 of Article V
of the Constitution of Texas, the Court of Criminal Appeals
stated in Pierson v. State, 177 S.W.2d 975 (Tex.Crim. 1944):
"The Legislature was enjoined to divide the
State into as many different districts as to it
appeared proper.
". . .

"It thus appears that: (a) District courts,
that is, the courts themselves, the jurisdiction
thereof, and the qualifications of the judges to

-1291-
Hon. T. C. Chadick, page 5 (c-268 )

preside over the courts, were defined and fixed
by the Constitution; and (b) to the Legislature,
and that body alone, was given the exclusive
authority to create such courts, to fix the
territorial jurisdictions thereof, and to
determine the number of such courts authorized
to exist in this state. The power to create
district courts, of necessity, carries with
it the equal power to destroy and this power
of destruction is as exclusive in the Legis-
lature as the power to create. . . .'I
The powers and duties of the Legislature prescribed
by the above-quoted provisions of the Constitution of Texas
are not such powers as may be delegated to another agency.
The submitted draft delegates to the Texas Judicial Redis-
tricting Board created therein the power prescribed by the
Constitution to the Legislature. You are therefore advised
that the submitted draft of a bill to create the Texas Judi-,
cial Redistricting Board is invalid.

SUMMARY

The submitted draft of a bill to create
the Texas Judicial Redistricting Board with
powers to apportion the State into judicial
districts is unconstitutional and invalid
since the same constitutes an unlawful dele-
gation of legislative power prescribed by
the provisions of Sections 1, 7, 22 and 27
of Article V of the Constitution of Texas.

Yours very truly,

WAGGONER CARR
Attorney General

Assistant
JR:sj

- 1292-
Hon. T. C. Chadick, page 6 (c-268 )

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Hawthorne Phillips
Pat Bailey
Paul Phy
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone

-1293~