                               July 5, 1988




       Honorable Jerry Cobb                Opinion No.   JM-929
       Criminal District Attorney
       5th Floor Carroll Courts Bldg.      Re: Eligibility of certain
       P. 0. BOX 2344                      former district judges for
       Denton, Texas 76201-2899            assignment (RQ-1429)

       Dear Mr. Cobb:

            YOU ask about the eligibility      of certain    former
       district judges to sit by special assignment.  The presiding
       judge of an administrative judicial region is authorized  to
       assign judges to try cases and dispose of accumulated
       business.  Gov't Code § 74.056(a).   Section 74.054 of the
       Government Code sets out the judges who are eligible     for
.Y-.   assignment by the presiding judge. Eligible judges include

               a former district judge or retired or former
               statutory county court judge who certifies to
               the presiding  judge a willingness to serve
               and to comply with the prohibitions  relating
               to the practice of law imposed on a retired
               judge by Section 44.005, Title llOB, Revised
               Statutes, and who is on the list maintained
               by the presiding  judge as required by this
               chapter.

       Gov't Code 5 74.054(a)(3).

            Your specific question is about section 74.055 of the
       Government Code, which requires the presiding judge to keep
       a list of judges subject to assignment          and sets out
       qualifications   for judges who are eligible to sit by
       assignment.   One of the necessary qualifications is that the
       judge have served as a judge for at least four years in a
       district, statutory, or appellate court. You ask about the
       interpretation of an exception to that four-year requirement
       enacted by the 70th Legislature.     Before we address your
       specific question, however,   it is necessary   to review the
       statutory history of section 74.055 in order to clarify what
       version of section 74.055 is to be given effect.
P




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                                                                 -\

     The statutes permitting    the presiding  judge of an
administrative judicial region to make special assignments
were enacted in 1985 as part of the Court Administration
Act. Acts    1985, 69th Leg., ch. 732,   § 2, at 2534.   The
Court Administration Act was initially codified as article
200a-1, V.T.C.S.    The provisions  that are now in section
74.055 of the Government    Code were originally enacted as
section 4.015 of article 200a-1.

     Three bills enacted by the 70th Legislature     purported
to affect section 4.015 of article 200a-1. One of those was
an omnibus bill conforming      the Judicial   Title of the
Government Code to changes  in the law and nonsubstantively
recodifying   certain statutes,   including  article   200a-1.
Acts 1987, 70th Leg., ch. 148, at 534 (effective September
1, 1987)   (hereinafter "Chapter 148"): see id.      5 5.01(a)
(stating that Chapter 148 is a nonsubstantive codification).
Chapter 148 repealed article    200a-1 in its entirety     and
recodified the substance of section 4.015 of article    200a-1
as section 74.055 of the Government Code.

     A second bill also reenacted section 4.015 of article
200a-1 as section 74.055 of the Government Code. Acts 1987,
70th Leg., ch. 674, 5 2.10, at 2507 (hereinafter      "Chapter
674") (section 2.10 effective     September  1, 1987).     The
reenactment of section 4.015 was, however, substantive.     It
added statutory county court judges to the judges eligible
to sit by special assignment.   Thus, the version.of   section
74.055 enacted by Chapter 148 is different from the version
enacted by Chapter 674.     Section  5.01(d) of Chapter    148
provides that any statute enacted by the 70th Legislature
that conflicts with a provision of Chapter 148 prevails over
the Chapter  148 provision.    Therefore, section   74.055 as
enacted by Chapter   674 prevails over section 74.055 as
enacted by Chapter 148.

     Chapter 674, like Chapter 148, contained a provision
specifically repealing section 4.015 of article 200a-1. Id.
5 2.14 (effective September 1, 1987). Nonetheless, a third
bill purported to amend section 4.015 of article 200a-1 by
adding subsection (d) to read as follows:

           A former district judge who has served as
        judge of more than one district court is not
        required to meet the four years of service
        requirement  in Subsection     (c)(l) to  be
        eligible to be named on the list.

Acts 1987, 70th Leg., ch. 516, at 2128 (effective August 31,
1987)(hereinafter "Chapter 516"). There is no reference   in




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.-

     Chapter 516 to the recodification     of section 4.015 of
     article 200a-1; Chapter 516 refers only to section 4.015 of
     article 200a-1.    Because Chapter   674 expressly   repeals
     section 4.015 of article 200a-1 while Chapter 516 amends it,
     there appears to be a conflict between those two enactments.

          Chapters 674 and 516 can, however, be easily harmon-
     ized. Gov't Code 5 311.025(b) (providing that amendments to
     same statute enacted at same session should be harmonized).
     Chapter 674 did not eliminate the substance      of section
     4.015. It moved it to section 74.055 of the Government
     Code, and in doing so, added a category of judges eligible
     to sit by special assignment.     Chapter 516 made another
     addition to the     substance  of   section 4.015.     Those
     amendments are not inconsistent in substance.      The only
     inconsistency is one of statutory    reference.   Thus, the
     provision added by Chapter 516 should be given effect     as
     part of section 74.055 of the Government Code, as enacted.in
     Chapter 674.1

          Your specific question is about the interpretation    of
     the provision added to section 74.055 by Chapter 516.    That
     provision makes an exception to the requirement that a judge
     must have four years of judicial experience      to sit by
     assignment.  The exception is for a "former district    judge
     who has served as judge of more   than one district   court."
     You suggest that there are two possible interpretations    of
     that language.  You suggest that the exception could apply
     to a judge who has been elected or appointed to more than
     one district court judgeship or that it could apply to a
     judge who has exchanged benches or districts pursuant      to
     section 24.303 of the Government     Code.   Section   24.303
     allows judges in counties in which there are two or more
     district courts to exchange benches or districts from time
     to time.




        1. A recent decision of the Texas Supreme Court presents
     a much more complex       issue of statutory    construction
     involving section 74.503 of the Government Code, which was
     the subject of several different    enactments of the 70th
     Legislature.   State v. Preslar, 31 Tex. Sup. Ct. J. 353
     (April 27, 1988). The four concurring opinions in Preslar
     underscore   the   difficulty  of  harmonizing   conflicting
     statutes adopted by the same session of the legislature.




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     The tape recordings   of   a hearing   before  the House
Committee on Judicial  Affairs make clear that Chapter      516
was enacted to allow one person, a judge         in Galveston
County, to sit by special assignment.     Hearing on H.B. 636
before the House Comm. on Judicial Affairs 70th Leg.     (March
11, 1987).  The judge was  appointed  by  Governor Briscoe   to
fill a vacancy   in a district     judgeship.    He was then
defeated in the subsequent  election to fill the judgeship.
Subsequently Governor  Clements   appointed   him to fill a
vacancy in a different district court. He chose not to run
when the term expired. His total service was less than four
years. Representative Hury stated in the committee     meeting
that it would be unlikely that anyone other than that one
judge would meet the narrow criteria set out by Chapter 516.
If every judge who ever exchanged a bench were eligible,
given how common this practice is, the exception          would
swallow the rule.     Therefore,    it is clear that        the
legislature intended Chapter 516 to apply only to a judge
who had been elected or appointed to more than one district
judgeship.  The legislature did not intend to allow any
district judge who has exchanged benches pursuant to section
24.303 of the Government    Code to be exempted      from the
requirement that a judge must have four years of judicial
service to sit by special assignment.                             .-

                        SUMMARY

           Acts 1987, 70th Legislature, chaper    516,
        page 2128, adds an exception to the reguire-
        ment that a judge must have four years of
        judicial   experience  to sit          special
        assignment.    Gov't  Code   5 74":55.     The.
        exception is for a "former district judge who
        has served as judge of more than one district
        court," and it applies only to a judge who
        has been elected or appointed to more than
        one district   court. It does not apply to
        district judges who have exchanged     benches
        pursuant to section 24.303 of the Government
        Code.

                                     Very truly yo   s
                                           c

                                   LJ-M"te;A
                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER                                                       -.
First Assistant Attorney General




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LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAK-Y
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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