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                         HEA         OWNEY        GENERAL
                                   cmT~xAs3
                               AUSTIN.   TEXAS    Q'S711
CnA,,'P"RD   C. MARTlN
  AT-rORNrnY OENERAL
                                 January 30, 1970


       Hon. Martin Dies, Jr.               Opinion NO. ~-567
       Secretary of State
       State Capitol Building              Re:   Whether the election of
       Austin, Texas 78711 -                     a judge for the 155th
                                                 Judicial District at the
                                                 General Election, 1968,
                                                 was to an unexpired term
                                                 ending December 31, 1970,
                                                 or to a four-year term _
       Dear Mr. Dies:                            beginning January 1, 1969.
                 Your recent letter to this office requests our opinion
       as to whether the election of the District Judge for the 155th
       Judicial District at the November, 1968,General Election was
       for an unexpired term ending on December 31, 1970, or for a
       four-year term beginning January 1, 1969,and ending December
       31, 1972.
                 The 155th Judicial District was created by House Bill
       783, Acts 55th Legislature, Regular Session, 1957, chapter 509
       page 1485. The Judicfal District created by this Act consisted
       of the counties of Austin, Caldwell, Comal, Fayette and Hays.
       Section 2 of thfs Act provided for the Governor to appoint a
       judge for the 155th District Court until the next General Elec-
       tion.
                 Section 7 of Article V of the Constitution of Texas
       provides, In part, as follows:
                  "The State shall be divided into as many
             judicial districts as may now or hereafter be
             provided by law, which may be increased or dim-
             inished by law. For each district there shall
             be elected by the qualified voters thereof, at
             a General Election, a Judge, e D D who shall
             hold his office for the period of four (4) years,
             and shall receive for his services an annual
             salary to be fixed by the Legislature. s 0 eU




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                                                           I   -




Hon. Martin Dies, Jr., Page 2(&l-567)


          Section 28 of Article V of the Constitut   Ion of Texas
provides, In part, that:
          ?acancies in the office of Judges of the
     . . . District Court shall be filled by the
     Governor until ihe next succeeding general
     election; . . .
          Thus, under the plain provisions of our Constitution,
the position of District Judge is an elective office for a
term of four years; however, vacancies in such office are to
be filled by the appointment of the Governor until the next
General Election. The Legislature has no authority to provide
that vacancies In such office be filled In any other manner or
that the term of office be other than for four years. When the
Legislature creates a new District Court, upon the effective
date of the Act there Is a vacancy In the office of Judge which
is subject to being filled by the appointment of the Governor
until the next General Election, and, after a Qeneral Election
takes place the term of office of the District Judge of such
Court Is fixed at four years by the Constitution. Eades v.
Drake, 160 Tex. 381, 332 S.W.2d 553 (1960); State v. Manry,
mex.     449, 16 S.W.2d 809 (1929); Manry v. McCall 22 S.W.2d
348 (Tex.Civ.App. 1929, no writ). Article 17 of Ve&on's Civil
Statutes provides that the term of such office shall begin on
the first day of January next following the General Election
at which such offices are regularly filled.
          When the Act creating the 155th District Court became
effective In 1957 there exfsted a vacancy in the office of Judge
of such Court which was subject to being filled by appointment
of the Governor until the next General Election. Thereafter,
such office was subject to being filled for a term of four
years at the General Election in November of 1958, 1962, 1966,
and 1970*
          Your letter goes on to relate that the Honorable
J. Lee Dlttert was elected to the office of Judge of the 155th
District Court at the General Election In 1966 for a four year
term beginning on January 1, 1967, and ending December 31, 1970,
and, that Judge Dfttert died on or about January 11, 1967.
Thereafter, the Act creating the 155th Judicial District was
amended by Senate Bill 468, Acts 60th Legislature, Regular
Session, 1967, chapter 150, page 308. The caption of such
Act reads as follows:




                          -2709-
Hon. Martin Dies, Jr., Page 3(M-567)


          "AN ACT reapportioning the 155th Judicial
     District and making necessary related provisions;
     amending chapter 509, Acts of the 55th Legislature
     Regular Session, 1957, as amended (Article 199(1553,
     Vernon's Texas Civil Statutes); and declaring an
     emergency.'
Sections 1 and 2 of the amendatory Act.read as follows:
           "Section 1. Beginning September 1, 1967,
     the 155th Judicial District is composed of
     Austin, Fayette and Waller Counties, and its
     jurisdiction is coextensive with the boundaries
     of those counties. Its court is the 155th
     District Court which has concurrent jurisdlc-
     tion with the 22nd District Court in Austin
     and Fayette Counties and with the 9th District
     Court in Waller County.

           “Sec. 2. The Governor shall appoint a
     qualified person to the office of Judge of the
     155th District Court. The person appointed
     holds office until the next General Election
     and until his successor is elected and has
     qualified. The Judge of the 155th District
     Court is entftl$d to the compensation pre-
     scribed by law.
          Senate Bill 468 became effective on May 9, 1967, and
thereafter on July 19, 1967, Governor John Connally sent a
letter to the Secretary of State which read as follows:
          "I have today appointed Paul Huser, City
     Attorney, Schulenburg, Texas, as Judge of the
     155th District Court, succeeding Judge J, Lee
     Dittert, deceased. Please Issue commission to
     Mr. Huser as soon as he has qualified."
Judge Huser took the oath of office on September 1, 1967, and
his appointment was submitted to the Senate for confirmation
on June 5, 1968 as having been made "to fill the unexpired term
of Judge J. Lee Dittert, deceased." The appointment was con-
firmed by the Senate on June 28, 1968. Even though the appoint-
ment and confirmation of Judge Huser was for the unexpired term
of Judge J. Lee Dittert, Section 28 of Article V of the Constl-
tution of Texas authorizes the Governor to fill vacancies In the
office of District Judge only until the next General Election,
which, in this ease would be November, 1968.

                        -2710-
Hon. Martin Dies, Jr., page 4(M-567)



--        At the General Election.in November, 1968, Judge
liuserran for, and was elected to, the office of Judge of the
155th District Court. The question of whether Judge Huser
was elected to the unexpired term of Judge Dittert which ends
on December 31, 1970, or was elected to a four-year term be-
ginning January 1, 1969, and ending December 31, 1972, depends
upon the effect to be given Senate Bill No, 468. If the Act
creates a new Judicial District, the office of Judge of the
District was subject to being filled at the November,~l968
election for a term of four years beginning January 1, 1969,
and ending December 31, 1972. However, If the Act did not
create a new Judicial District then the office of Judge of the
155th Judicial District was subject to being filled at the
November, 1968, General Election for the unexpired term to
which Judge Dittert was elected, and which ends on December
31, 1970.
          Considering Senate Bill 468 as a whole, it is our
opinion that such Act Is no more than the caption plainly
shows It to be, i.e., an Act reapportioning the 155th Judicial
District, and that it was not the intention of the Legislature
to abolish the District and create a new one. State v. Manry,
118 Tex. 449, 16 S.W.2d 809 (1929). You are therefore advised
that Judge Huser was elected to the office of Judge of the 155th
Judicial District at the November, 1968, General Election to fill
an unexpired term of office which ends on December 31, 1970.
Insofar as Section 2 of Senate Bill No. 468 may be construed as
authorizing an election to the office of Judge of the 155th
District Court for a term of four years at the November, 1968
General Election, such provision would be void as a legislative
attempt to provide a term of office which Is contrary to that
provided by the Constitution. See Eades v. Drake, 160 Tex. 381,
332 S.W.2d 553 (1960).
                     SUMMARY
          S.B. No. 468> Acts 60th Leg., R,S., 1967,
     ch. 150, pa 308, did not create a new Judicial
     District but merely reorganized the 155th
     Judicial District. The election to the office
     of Judge of the 155th Judicial District at the
     November, 1968, General Election was for an un-
     expired term ending on December 31, 1970, and
     not for a four-year term beginning January 1,
     1969, and ending December 31, 1972.




                        -2711-
Hon. Martin Dies, Jr., page 5 (~567)




Prepared by W. 0. Shultz
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Bill Allen
John Reeves
Arthur Sandlin
James Quick
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant




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