. I
THEAA~TORNEYGENERAL
OF, TEXAS
AURTIN, T*‘~xAs 78711
JOHN L. aILL
A1TORNEY GrzNER.4&
July 11, 1977
Honorable Gibson D. Lewis Opinion No. H-1023
Chairman, Committee on
Intergovernmental Affairs Re: Whether the Legislature
House of Representatives may remove a judge in a spe-
Austin, Texas 78711 cial session.
Dear Representative Lewis:
you have asked that we advise you on the ability of the
Legislature to include a "Resolution of Address" for the re-
moval of Justice Donald Yarbrough in its order of business
in special session of the Legislature.
Removal of judges by address is provided for in article
15, section 8 of the Texas Constitution. That section pro-
vides:
The Judges of the Supreme Court, Court of
Appeals and District Courts, shall be re-
moved by the Governor on the address of
two-thirds of each House of the Legisla-
ture, for wilful neglect of duty, incom-
petency, habitual drunkenness, oppression
in office, or other reasonable cause which
shall not be sufficient ground for impeach-
ment; provided, however, that the cause or
causes for which such removal shall be re-
quired, shall be stated at length in such
address and entered on the journals of each
House; and provided further, that the cause
or causes shall be notified to the judge SO
intended to be removed, and he shall be ad-
mitted to a hearing in his own defense be-
fore any vote for such address shall pass,
and in all such cases, the vote shall be
taken by yeas and nays and entered on the
journals of each House respectively.
See also V.T.C.S. art. 5964.
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p. 4225
. . . .:
Honorable Gibson D. Lewis - Page 2 (H-1023)
If there is any barrier to considering removal of a judge
by address during a special session, it is posed by article 3,
section 40 of the Texas Constitution. That section provides:
When the Legislature shall be convened in
special session, there shall be no legis-
lation upon subjects other than those des-
ignated in the proclamation of the Governor
calling such session, or presented to them
by the Governor; and no such session shall
be of longer duration than thirty days.
See also Tex. Const. art. 4, 5 8.
--
The precise question was considered in reference to im-
peachment by the Texas Supreme Court in Ferguson v. Maddox,
263 S.W. 888 (Tex. 1924). The House of Representatives filed
articles of impeachment against Governor Ferguson during the
Second Called Session of the Thirty-fifth Legislature. House
Journal, 35th Leg., 2nd Called Sess., 78-104. The Senate trial
began in the Second Called Session: Senate Journal, 35th Leg.,
2nd Called Sess., 114; and was concluded in the Third Called
Session. Senate Journal, 35th Leg., 3rd Called Sess., 996.
Governor Ferguson argued that his failure to include impeach-
ment in his proclamation convening the Second Called Session
of the Legislature prevented the consideration of the subject.
The Supreme Court considered the nature of the impeach-
ment function and specifically noted the similarity between
impeachment and the criminal justice process. The Court con-
cluded that the powers of impeachment
are essentially judicial in their nature.
Their proper exercise does not, in the
remotest degree, involve any legislative
function.
. . . .
Without a doubt, [the Legislature] may
exercise them during a special session,
unless the Constitution itself forbids.
It is insisted that such 'inhibition is
contained in article 3, 5 40, which pro-
vides that legislation at a special ses-
sion shall be confined to the subjects
p. 4226
Honorable Gibson D. Lewis - Page 3 (~-1023)
mentioned in the proclamation of the
Governor convening it. This language
is significant and plain. It purposely
and wisely imposes no limitation, save
as to legislation. As neither House
acts in a legislative capacity in matters
of impeachment, this section imposes no
limitation with relation thereto, and the
broad power conferred by article 15 stands
without limit or qualification as to the
time of its exercise.
Ferguson v. Maddox, supra at 890-891.
If removal by address is a judicial rather than a legis-
lative process, it may be considered in a special session even
if the Governor does not include the subject in his proclama-
tion calling the Legislature into session.
On at least three occasions the Texas Supreme Court has
indicated that removal by address is essentially a judicial
proceeding. The Court said:
In all of the methods provided for re-
moval of a judge, the judge is entitled
to a full and fair trial on the charges
preferred against him.
Matter of Carrillo, 542 S.W.2d 105, 108 (Tex. 1976). And
the judge is guaranteed a full and fair
trial on the charges preferred against
him, whether the charges be by way of
articles of impeachment . . . or by way
of legislative address to the Governor. . . .
In re Laughlin, 265 S.W.2d 805, 808 (Tex. 1954), appeal dis-
missed sub. nom., Laughlin v.' Wilson, 348 U.S. 859 (1954).And
under every mode of removal expressly pro-
vided by [article 151 an officer is,given
the important safeguards of a trial, in-
cluding formal written charges, notice, and
an opportunity to be 'heard. . . . Even by
address of two-thirds of both Houses, the
Governor cannot remove any judge until the
written causes for removal are stated at
length in the journals and have been 'noti-
fied to the judge so intended to be removed,
P. 4227
Honorable Gibson D. Lewis - Page 4 (H-1023)
and he shall be admitted to a hearin .in
duch
his own defense before any vote
address~ shall pass.'
y;enf,ield v.~ State ex 'rel. Allred, 73 S.W.Zd 83, 86 (Tex.
9 4) (emphasis by court). The historical development of ad-
dress is that it has become a quasi-judicial proceeding in
which a hearing has been afforded. Shartel, Retirement and
Removal of Judges, 20 Journal of the American Judicature
Society 133, 147.
Since removal of judges by address is a quasi-judicial
proceeding, the Legislature may utilize this procedure in a
special session even if the subject is not included in the
Governor's proclamation calling the Legislature into session.
SUMMARY
Removal of judges by address is a quasi-
judicial proceeding and may be considered
in a special session even if it is not
included in the Governor's proclamation
calling the Legislature into session.
Very truly yours,
Attorney General of Texas
APPROVED:
c. ROBERT HEATH, Chairman
Opinion Committee
klw
p. 4228