THEATTORNEYGENERAL
OFYrExAS
AUSTIN 1%.TExAe
December 19, 1963
Honorable Joe Resweber Opinion NO. c-198
County Attorney
Harris County Re: Method of selecting
Houston, Texas party nominees for the
office of Judge of the
165th District Court
for the 1964 general
Dear Sir: election.
You have requested an opinion on how party
nominations for the office of Judge of the 165th District
Court should be made for the general election in 1964.
More specifically, you wish to know whether the nomination
by a party holding primary elections should be made in the
primaries, and if not, how the nomination may be made. The
question arises because of the fact that the court will not
come into existence until June 1, 1964, after the first
primary has already been held on the first Saturday in May.
The 165th District Court Is created b Chapter 507
Acts of the 58th Legislature, 1963 (Art. 199(161,165), v.c.sI).
This act provides for the creation of seven new district
courts. Three of the courts are created effective September 1,
1963; one is effective October 1, 1963; one is effective
February 1, 1964; and two (the 165th for Harris County and
the 167th for Travis County) are effective June 1, 1964.
The provision creating the 165th Court reads as follows:
"Sec. 3. Harris County.
"(A) There are hereby created In and for
Harris County, Texas, two (2) additional
District Courts, the limits each of which
shall be coextensive with the limits of
Harris County, Texas. Said Courts shall be
known, respectively, as the 164th and 165th
District Courts; the 164th District Court
shall be effective September 1, 1963, and
the 165th District Court shall be effective
June 1, 1964.”
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Hon. Joe Resweber, page 2 (c-198 )
Section 6 of Chapter 507 provides:
“The Governor shall appoint a suitable
person as Judge, respectively, of each of
said District Courts herein created, each
of whom shall hold office until the next
General Election and until his successor
has been duly elected and qualified. At
the first General Election after the
creation of said District Courts provided
for herein the Judge of each of said Courts
shall be elected for a term of four (4)
years. . . .II
Section 8 of Chapter 507 contains an emergency
clause which recites that "this Act shall take effect and
be in force from and after September 1, 1963.” However,
the bill was not passed by the two-thirds record vote In
each House which is necessary to put the emergency clause
into effect.
For parties which cast more than 200,000 votes
for Governor In the preceding general election, the normal
rule Is that nominations for offices to be filled at the
general election must be made by primary election, upon
applications of candidates filed In accordance with Article
13.12 of the Texas Election Code. V.A.T.S. Election Code,
Arts. 6.01 and 13.02. This Is also true for parties under
200,000 which choose to hold primaries. V.A.T.S. Election
Code, Art. 13.45. Article 13.12a (added by Acts 58th Leg.,
R.S. 1963, ch. 424, sec. 88) provldes methods for making
nominations for unexpired terms where the vacancy necessi-
tating the election arises too late for selecting a nominee
by the ordinary primary procedures. In other situations
where the need for the nomination and election arises too
late for nomination by ordinary procedures, the party may
nominate by any method which is sanctioned by part usage
and is not contrary to law. Gilmore v. Waples, 108 Tex.
167, 188 S.W. 1037 (1916); Kllday v. Germany, 139 Tex. 380,
163 S.W.2d 184 (1942); Williams v. Huntress, 153 Tex. 443,
272 S.W.2d 87 (1954).
We are of the opinion that any party which is
holding primary elections In 1964 must nominate Its candidate
for the office of Judge of the 165th District Court by primary
election, under the general rules applicable to nominations
in the primaries. Although the court will not come into
existence until June 1, 1964, the act creating the court
became a law, for the purpose of giving notice of Its contents,
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Hon. Joe Resweber, page 3 (C- 198)
on August 23, 1963, 90 days after adjournment of the session
at which It was passed. Popham v. Patterson, 121 Tex. 615,
51 S.W.2d 680 (1932); Anderson v. Penlx, 138 Tex. 596,
161 S.W.2d 455 (1942).
In the Popham case, the second section of an act
of the Legislature, approved March 20, 1930, which Increased
the term of county school superintendents from two years
to four years, provided that "This act shall take effect
January 1, 1931." Section 3 contained an emergency clause
providing for Immediate effect, but the bill was not passed
by the vote required to put it into effect as an emergency
measure. The question before the court was whether county
superintendents elected at the general election In 1930
received two-year terms or four-year terms. The court held
that they received four-year terms, saying:
"Appellee contends that the act of 1930
cannot be given effect to extend the terms
of county superintendents elected at the
November, 1930, election to take office on
January 1, 1931, from two to four years,
because to do so would be to give such law
a retroactive effect and apply Its terms
before It became a law. We do not agree with
this contention.
"In construing statutes It Is the duty
of the court to ascertain the legislative
intent, and, when such intent Is once arrived
at, It should be given effect; in fact, such
Intent is the law. In determining the legls-
latlve Intent, the court should not look
alone to any one phrase, clause, or sentence
of the act, but to the entire act; and this
Includes the caption, the body of the act,
and the emergency clause. In this connection
we hold that, even when the emergency clause
cannot be given effect as such, still its
provisions may be looked to If they aid the
court In ascertaining the legislative Intent.
"When we apply the above rules to the
1930 act, supra, it becomes evident that the
clause therein, 'This Act shall take effect
January 1, 1931,' does not mean that the
act did not become a law until January 1,
1931, but merely means that It did not have
effect to lengthen terms of office until
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P
Hon. Joe Resweber, page 4 (C-198)
such date. In other words, if the act
had not contained the clause just quoted
its effect would have been to lengthen
the terms of those already in office
from two to four years, and would have
done away with the election of elective
county superintendents at the November,
1930, election.
"We think that the above construction
of the 1930 act Is rendered certain by the
terms of Its emergency clause, which pro-
vides that It shall take effect from and
after Its passage. It Is true that the
act did not pass with the recorded vote
required to put It Into Immediate effect,
but, had the Legislature Intended that
the act should not become a law until
January 1, 1931, there would have been
no purpose In having an emergency clause
at all. Had the act passed by the recorded
vote required to put It Into Immediate
effect, all persons Interested would have
had Immediate notice that county super-
intendents elected in November, 1930, to
take office January 1, 1931, would hold
a four-year term. As the act did not
get the required recorded vote to put
it into Immediate effect, this notice
did not become operative until the act
became a law, which was 90 days after the
adjournment of the Legislature or about
June 20, 1930.
“Appellee contends that the 1930 act
could not be effective as notice until It
became a law, citing Missouri, K. & T. Ry.
Co. v. State, 100 Tex. 420, 100 S.W. 766.
We agree with this contention. No act of
the Legislature Is operative as notice
until it becomes a law, but it Is so
operative as soon as It does become a law.
Since this act became a law, about June 20,
1930, it operated as notice from that date
forward. This holding Is In entire harmony
with the holding In Missouri, K. & T. Ry.
Co. v. State, supra.”
In Anderson v. Penix, supra, an act approved on
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.. \
Hon. Joe Resweber, page 5 (C-198)
July 23, 1941, provided for reorganization of the 30th
Judicial District, then composed of Wichita;Archer; Andy
Young Counties, bye transferring Archer and Young Counties
to other districts, leaving the 30th District to consist
of Wichita County only. Section 6 of the act provided that
"This Act shall take effect and be In operation on and
after January 1, 1943." Section 8 was an emergency clause
providing for Immediate effect, but the act was not passed
with a two-thirds record vote. The question before the
court was whether the voters of Young and Archer Counties
should participate In the nomination and election of the
district attorney for the 30th district at the 1942 primary
and ~general elections. The court held that the office
should be filled by the voters of Wichita County only,
saying:
I, The Act became a law ninety
days afier ihe adjournment of the Legis-
lature which enacted It. Popham v. Patterson,
supra. At that time It became effective,
except as to certain matters which were
postponed until a later date. The law gives
notice as soon as hit becomes a law. Popham
v. Patterson, supra. When the provision
In regard to the effective date is con-
sidered with the balance of the Act, It Is
evident that the Legislature only intended
thereby to postpone operation of the
courts affected until January 1, 1943.
The Act also demonstrates an Intention to
permit all elected officers to serve out
their terms of office. The act did not
Intend that offices now occupied by
officers whose terms of office expire on
January 1, 1943, shall be filled for
terms beginning on that date by the voters
of the counties which will not be In the
district which such new officers will serve.
The effect of our decision Is that Wichita
County alone will elect the district
attorney for the 30th district. . . .n
While operation of the 165th District Court Is
postponed until June 1, 1964, the act creating the court
became effective to give notice of its creation and of the
election of a judge at the general election in 1964 long
before the deadline for candidates to file in the 1964
primary elections. Under these circumstances, we are
of the opinion that nominations for the office will be
governed by the normal rules applicable to regular full
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r -.
Hon. Joe Resweber, page 6 (C-198 )
terms of office, and parties holding primary elections must
make their nominations In the primaries. The situation Is
similar to that In the Anderson case, except that here the
court will come Into existence after the primary election
and before the general election, rather than after both
the primary and the general election. It Is dlstlnguishable
from the situation In Williams v. Huntress, 153 Tex. 443,
272 S.W.2d 87 (1954), wherein the Supreme Court upheld a
nomination made by the state convention of the Democratic
Party for a new district judgeship. The controversy in
that case was between a nominee sele&ted:byYthe state
convention and a nominee selected by the county convention
(the district consisted of only one county), It being
taken for granted both by the litigants and by the court
that the new office had been created 'in such a fashion
that the nominee Is not selected at the regular primary."
The act creating the new court (Acts 53rd Leg., 1st C.S.
1954, ch. 51) provided that the court "shall come Into
existence on September 1, 1954." It was passed at a
special session of the Legislature which adjourned on
April 13, 1954, and It became a law on July 13, 1954, 90
days after adjournment. In the year 1954 the first primary
election was held on the fourth Saturday in July, subsequent
to the date on which the law became effective to give notice
of Its contents, but the filing deadline for the primary
was the first Monday In May. On that deadline date the act
creating the court had not become law and therefore was not
effective as notice that the office was to be filled at the
1954 general election. Popham v. Patterson, supra. Con-
sequently, the provisions of th Election code requiring
nomination by primary election &d not a ply. Meyers v.
Smith, 314 S.W.2d 631 (Tex.Clv.App. 1958P .
Brown v. Meeks, 96 S.W.2d 839 (Tex.Civ.App. 1936,
error dism.) I ther case which should be noticed. On
June 1, 1936: t~ea~~mmlssloners Court of Bexar County adopted
an order redividing the county Into justice precincts, to be
effective as of January 1, 1937, and provided In the order
that the precinct officers should be nominated and elected
in the 1936 elections in accordance with the precincts as
defined In the order. The filing deadline for the primaries
was the Saturday before the third Monday In June. Art. 3113,
R.C.S. 1925. In an election contest between opposing
candidates in the 1936 Democratic primary for nomination to
the office of constable of redefined Justice Precinct No. 1,
the Court of Civil Appeals held that the attempted nomination
of a candidate for constable of the redefined precinct was a
nullity and that neither candidate could be declared the
nominee. The court said:
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I. , ,.
. ,,
Hon. Joe Resweber, page 7 (C-198 )
"It Is clear from what has been said
above that,'under the plain provisions of
the election statutes, persons cannot
become candidates for an office that does
not exist, nor can voters cast their
ballots for such candidates." 96 S.W.2d at
843.
At another point the court said:
'I. . .@$7hen the commlsslonerst
court attemp s to determine who may
become a candidate or vote in such new
districts, It Is attempting to legislate
upon a subject over which it has no
jurisdiction. The Legislature of this
state has fixed the qualifications of
candidates for the office of constable,
or any other precinct officer, article
2927, R.S. 1925, and the commlsslonersl
court cannot add to or take from these
quallflcatlons. . . . The Legislature
is the supreme legislative power of the
state, and, where an order of the
commissioners court conflicts with a
proper legislative act, the order must
give way and the act of the Legislature
prevail.' 96 S.W.2d at 842.
It 1s readily apparent that the Brown case reaches
a different result from that reached in At-&?% v. Penlx.
Perhans the cases can be reconciled on the ground that the
Brown-case Involved action by the commissioners court, whereas
thenderson case Involved an act of the Legislature. Be
that as It may, the Anderson case was decided by the Supreme
Court subsequent to the decision In the Brown case, and we
therefore feel no hesitancy in followlng%%?later decision.
It may also be observed that the term of office for
which the election will be held In 1964 Is a full four-year
term. Sec. 6 of Chapter 507, supra; Eades v. Drake, 160 Tex.
381, 332 S.W.2d 553 (1960). Rules as to wnetner an election
to fill an unexpired term may be held before occurrence of
the vacancy are not In point.
SUMMARY
The Act creating the 165th District Court
became effe~ctiveon August 23, 1963, to
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,” . . L,
Hon. Joe Resweber, page 8 (C-198)
give notice of the court’s creation and
of the @lectlon of a judge at the 1964
general election, although the court will
not come Into existence until June 1,
1964. Candidates at the 1964 general
election for the judgeship of this court
should be nominated by normal nominating
procedures. Parties holding primaries
must nominate their candidates by primary
election.
Yours very truly,
WAGGONER CARR
Attorney General
Mary Ii. Wall
Assistant
MKw:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
V. F. Taylor
Ben Harrison
Howard Mays
Jerry Brock
APPROVED FOR THE ATTORNEY GENERAL
BY: H. Grady Chandler
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