Untitled Texas Attorney General Opinion

. - THE ADTTORNEY GENERAL OFTEXAS @P A~~~IN.TEXAR 78711 The Honorable Maurice S. Pipkin Opinion H- 57 Executive Director State Judicial Qualifications Commission Re: Whether a hearing P. 0. Box 12265, Capitol Station before a Master Austin, Texas 78711 cmnes under Rule 254 of the Texas Rules of Civil Dear Mr. Pipkin: Procedure? As executive director of the Judicial Qualifications Commission you have requested the opinion of this office on the question: “Does a hearing before a master pursuant to the Rules for the Removal or Retirement of Judges come under Rule 254 of the Texas Rules of Civil Procedure? ” Rule 254, appearing also as Art. 2168a, V. T. C. S., as amended by H. B. 264 by the 63rd Legislature, makes a continuance of the cause man- datory “[i]n all suits, either civil or criminal, or in matters of probate, pending in any court of this State and in all matters ancillary to such suits which require action by or the attendance of an attorney . . . ” when~it appears by affidavit that any party applying for the continuance, or any attorney for any party is or will be in actual attendance at a Legislative Seseion. In our opinion, a Texas Rule of Civil Procedure providing for Legis- lative continuance has no application to a hearing before a Master in the course of proceedings conducted by the Judicial Qualifications Commission. Article 5, $ I-a (11) of the Constitution of Texas provides: “The Supreme Court shall by rule provide for the procedure before the Commission, Masters and p. 243 The Honorable Maurice S. Pipkin, page 2 (H-57) the Supreme Court. Such rule shall afford to any person. . . against whom a proceeding is instituted to cause his retirement or removal, due process of law.. . . Due process shall include the right to notice, counsel, hearing, confrontation of his accu- sers, and all such incidents of due process upon proof of which a penalty may be imposed. ” The Supreme Court has exercised this constitutional authority by promulgating and adopting the Rules For The Removal or Retirement of Judges. Our courts have held that when the Constitution grants certain powers, and the means by which these powers can be exercised are pre- scribed, such means are exclusive of all others. Crabb v. Celeste In- dependent Schoql Dist., 146 S. W. 528 (Tex. 1912); City of Fort Worth v. Howerton, 236 S. W. 2d 615 (Tex. 1951); White v. State, ~440 S. W. 2d 660 (Tex. Crim. 1969). Since the Constitution has vested rule-making authority for the Commission in the Supreme Court, we believe the only rules having force -7 and effect in proceedings before a master appointed by the Commission are those expressly adopted by the Court. Rule 15, “Extension of Time” in the Rules for the Removal and Re- tirement of Judges controls your question: “The chairman of the Commission may extend for pe’ridds not to exceed 30 days in the aggregate the time for fi,ling an answer, for the commencement of a hearing before the Commission, and for filing a statement of objections to the report of a master, and a master may similarly extend the time for the corn- mencement of a hearing before him. ” In our opinion Rule 15 limits the extension of time for a hearing before a master to 30 days in the aggregate, and this extension is discretionary, not mandatory. p. 244 r The Honorable Maurice S. Pipkin, page 3 (H-57) We have considered Rule 7 “Hearing” which requires that “[a]t the time and place set for hearing, the Commission, or the master, shall proceed with the hearing as nearly as may be according to the rules of procedure governing the t:rial of civil causes of this State. ” A close reading of Rule 7 discloses that it was intended to govern. proceedings during a hearing before a Master, and not questions concerning when the hearing should take place or for how long a period a hearing may be postponed. This is the on:ly possible interpretation of the language 11. . . the master, shall proceed with the hearing. ” SUMMARY Rule 254 of the Texas Rules of Civil Procedure does not require continuance of a hearing before a Master in proceedings instituted against a judge by the Judicial Qualifications Commission, where the attorney for the judge is in attendance at a Legisla- tive Session. The Supreme Court has exercised its r‘ constitutional authority to promulgate rules govern- ing procedure before the Commission or master and has limited continuances of a hearing before the master to a period not to exceed 30 days in the aggregate. Very truly yours, flzln 4, P,LL--cY JOHN L. HILL A,ttorney General of Texas APPAOVED: DAVID M. KENDALL, Chairman Opinion Committee p. 245