                                ATTORNEY           GENERAL OF TEXAS
                                            GREG        ABBOTT


                                              September 2,2004



The Honorable G.E. “Buddy” West                            Opinion No. GA-0245
Chair, House Committee on Energy Resources
Texas House of Representatives                             Re: Whether the courtrooms and offices of the
Post Office Box 2910                                       40th and 378th District Courts may be located
Austin, Texas 78768-2910                                   anywhere within the geographical boundaries of
                                                           the City of Waxahachie   (RQ-0200-GA)

Dear Representative     West:

        You ask whether the courtrooms and offices of the 40th and 378th Districts Courts may be
located at any place within the geographical boundaries of the City of Waxahachie.’

I.      Background

        On December 20, 1849, the Texas Legislature enacted a statute creating Ellis County. See
Act approved Dec. 20, 1849,3d Leg., R.S., ch. 18, 1849 Tex. Gen. Laws 454,454-55, reprinted in
3H.P.N. GAMMEL,THELAWSOFTEXAS~~~~-~~~~,~~ 16,16-17(Austin,GammelBookCo.                    1898).
Section 4 of the act provides, in relevant part:

                 [b]e it further enacted, That the commissioners, after having found
                 the centre, and designated the places to be run for the county seat of
                 said county of Ellis, shall cause an election to be held at the several
                 precincts in said county, for the purpose aforesaid; and all persons
                 having a right to vote for representatives in the State Legislature, shall
                 be entitled to vote for the county seat; and the place receiving a
                 majority of the whole vote, shall be the county seat of said county,
                 and called Waxahachie.

Id. 5 4. Because there existed “no town or community whatsoever at the site of the county seat when
that location was selected in 1849,” the election was held at the only residence, the cabin of E.W.
Rogers?



          ‘Letter from Honorable G.E. “‘Buddy” West, Chair, House Committee on Energy Resources, Texas House of
Representatives,    to Honorable Greg Abbott, Texas Attorney General (Mar. 18, 2004) (on tile with the Opinion
Committee, also available ar http://www.oag.state.tx.us) [hereinafter Request Letter].

        ‘Brief from Honorable Joe F. Gmbbs, Ellis County and District Attorney, to Nancy S. Fuller, Chair, Opinion
Committee, Office ofthe Attorney General, at 1 (May 5,2004) (on tile with the Opinion Committee) [hereinafter Gmbbs
Brief].
The Honorable G.E. “Buddy” West - Page 2               (GA-0245)




         On August 5, 1850, the Ellis County Commissioners Court organized Ellis County, and
appointed a surveyor to “lay off the county seat, comprising sixty acres of land in a public square,
lots, streets and allies [sic] of size and dimensions as may be determined by the court.” Grubbs
Brief, supra note 2, at 2. At the February 1851 term of the commissioners court, the surveyor
reported that “the town map is complete and accompanies this report.” Id. Previously, on November
19,1850, Emory W. and Nancy Rogers had “deeded to Ellis County sixty-two acres which became
the Original Town of Waxahachie.” Id. The Ellis County Courthouse stands within the sixty-two
acres deeded by Mr. and Mrs. Rogers. See id.

          You indicate that, “[wlhen restoration of the historic courthouse in downtown Waxahachie
  . . began in 1999, the 40th District Court and the 378th District Court were located to a series of
interconnected portable buildings nearby.” Request Letter, supra note 1, at 1. “Due to various
circumstances, construction on the Justice Center has been delayed, leaving the courts in these
temporary structures.” Id. It has been suggested that the district courts could be moved to another
location within the City of Waxahachie. See id. Some persons have raised concerns, however, that
the courts may not be removed to any location outside the original city boundaries, i.e., the sixty-two
acres donated by the Rogers family. See id. You ask whether the 40th and 378th District Courts
may locate their courtrooms and offices outside the original sixty-two acres, so long as they are
located within the existing municipal boundaries of the City of Waxahachie. See id.

II.     Relevant Law and Analvsis

          Article V, section 7 of the Texas Constitution, which provides for the creation of judicial
districts, states that “[t]he court shall conduct its proceedings at the county seat of the county in
which the case is pending, except as otherwise provided by law.” TEX. CONST. art. V, 5 7. By its
plain language, this provision does not indicate that the term “county seat” is limited to the original
boundaries of the city designated as the county seat. In Bridgman Y.Moore, 183 S.W.2d 705 (Tex.
 1944), the Supreme Court of Texas said that “[olur Constitution and statutes require a district judge
to hold court only at the county seat of the county, which means theplace where the courthouse is
situated.” Id. at 708 (emphasis added). Although the term “place” could refer either to the precise
physical location of the courthouse, we believe it more likely that “place” denotes the city or town
designated as the county seat.

         A subsequent case, Stine v. State, 908 S.W.2d 429 (Tex. Crim. App. 1995), suggests the
above construction: “[T]he constitutional requirement that court proceedings occur in the county
seat is a fundamental way to keep our most formal adversarial process open and public.” Id. at 43 1.
An even later case echoes this view:

                Article V, section 7, requires courts to conduct proceedings “at the
                county seat of the county in which the case is pending, except as
                otherwise provided by law.” This requirement is jurisdictional.

Garza v. State, 974 S.W.2d 251,262 (Tex. App.-San Antonio 1998, pet. ref d); see also Howell v.
Gauzy, 899 S.W.2d 690,699 (Tex. App.-Austin 1994, writ denied) (the Texas Constitution requires
a district court to conduct proceedings only at the county seat of the county in which the case is
pending).
The Honorable     G.E. “Buddy” West - Page 3                 (GA-0245)




        A brief submitted to us contends, however, that the existing City of Waxahachie is not in fact
the county seat of Ellis County. The argument is as follows:

                 The territory designated as fhe county seat of Ellis County was not a
                 municipality,  but a 62-acre tract of unimproved        pasture land.
                 Waxahachie is not, therefore, a “municipality designated as the
                 county seat” as a matter of historical certainty. No municipality
                 known as Waxahachie existed at the time of county seat selection and
                 could not have been. Only E. W. Rogers’ cowpasture, was so
                 designated.

                           .


                 The county seat chosen by the electors of Ellis County in 1850 is the
                 62-acre “Original Town” located in what is now downtown
                 Waxahachie, and that is where district courts must conduct their
                 proceedings until a majority of county electors determine otherwise,
                 or the constitution is amended     .3

This position has some support in case law. InPitts v. Camp County, 39 S.W.2d 608 (Tex. Comm’n
App. 193 1, judgm’t adopted), the court, in construing the meaning of the term “county seat” in a
deed, stated as follows:

                 [W]here an act of the legislature selects a certain town as county seat,
                 the board of county commissioners had no authority to move the
                 county courthouse to a portion of the town not embraced within its
                 limits when the act was passed, notwithstanding       that act of adding
                 territory to the town was passed after the locating act, and that the
                 actual establishment ofthe courthouse occurred after the enlargement
                 of the town.

Id. at 616.

        This contention-that   the “countyseat” ofEllis County is not in fact the City ofwaxahachie,
but only the original “62-acre ‘Original Town, “’ ignores the reality that the City of Waxahachie is
widely recognized as the county seat of Ellis County. See, e.g., TEXAS ALMANAC 173 (1999).
Furthermore, the 1849 legislative act creating Ellis County did in fact declare that, whatever tract
of land was selected by the voters would be the “county seat” of Ellis County and would be known
as “Waxahachie.” See Act approved Dec. 20,1849,3d Leg., R.S., ch. 18,1849 Tex. Gen. Laws 454,
454-55, reprinted in 3 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897,               at 16, 16-17 (Austin,
Gammel Book Co. 1898). The briefer acknowledges that the City of Waxabachie became an



          ‘Brief from Mr. Fred Weldon, to Honorable Greg Abbott, Texas Attorney   General, at 3-4 (May 2,2004)   (on
tile with the Opinion Conrmittee) [herein&r  Weldon Brief].
The Honorable G.E. “Buddy” West - Page 4                (GA-0245)




incorporated “municipality” in 1871. See Weldon Brief, supra note 3, at 3. It is thus not clear that
Pitts is strictly applicable to the situation posed here. In any event, Pitts was issued in 193 1. In
1949, the legislature added to the original language of Texas Constitution article V, section 7, the
following clause: “except as otherwise provided by law.” TEX. CONST. art. V, 5 7, amended by Tex.
H.J: Res. 22,§ 1,5lstLeg., R.S., 1949Tex. Gen. Laws 1496,1496. In 1987, the legislature enacted
such a law.

        Section 292.004 of the Local Government      Code provides, in relevant part:

                        (a) The commissioners court of a county may provide, inside
               the municipality      designated as the county seat, an auxiliary
               courthouse, ajail, a parking garage, a facility for district, county, and
               precinct administrative and judicial offices and courtrooms, or any
               facility related to the administration of civil or criminal justice .




                        (c) If the commissioners court designates the facility as an
               auxiliary courthouse, the facility may not replace the courthouse at
               the county seat.

                       (d) A court required by law to hold its terms at the county
                seat may hold its terms at a court facility provided under this section.

                        (e) A district, county, or precinct officer required by law to
               maintain an office at the county seat may maintain an office and keep
               official records at a facility provided under this section. The officer
               must also keep an office at the county seat.

TEX.  tic. GOV’T CODE ANN. $292.004 (Vernon 1999). Finally, subsection (a) speaks directly to
the issue of territory annexed by the municipality designated as the county seat: “For purposes of
this section, the municipality designated as the county seat includes territory added to the
municipality after it became the county seat but excludes any part of the municipality outside the
county.” Id. § 292.004(a).

         Thus, if there is any doubt about whether article V, section 7 of the Texas Constitution
permits a county to locate the courtrooms and offices of district judges at anyplace within the county
seat, section 292.004 of the Local Government Code removes that doubt. Even if it could be argued
that the constitutional provision limits the location of the Waxahachie district courts to the city’s
original sixty-two acres, article V, section 7 also contains the language “except as otherwise provided
by law.” By enacting section 292.004, the legislature has “provided” such a law, and it is applicable
to the situation you pose so long as Waxahachie is the “municipality designated as the county seat.”
SeeBennett v. State, 82 S.W.3d 397,398 (Tex. App.-Austin 2002, no pet.) (“[A] district court ‘shall
conduct its proceedings at the county seat of the county in which the case is pending, except as
The Honorable G.E. “Buddy” West - Page 5                (GA-0245)




otherwiseprovided by law. . . .“‘) (citing T exas Constitution article V, section 7). In our view, there
can be no doubt that the City of Waxahachie, even if considered only to comprise its original sixty-
two acres, is the “municipality designated as the county seat” of Ellis County. And section 292.004
makes abundantly clear that a county seat includes all territory within the existing boundaries of the
municipality designated as the county seat.

        We conclude therefore that the 40th and 378th District Courts may locate their courtrooms
and offices outside the original sixty-two acres of the City of Waxahachie, so long as those
courtrooms and offices are located within the existing municipal boundaries of the city.
The Honorable G.E. “Buddy” West - Page 6              (GA-0245)




                                       SUMMARY

                       The 40th and 378th District Courts may locate their
               courtrooms and offices outside the original sixty-two acres ofthe City
               of Waxahachie, so long as those courtrooms and offices are located
               within the existing municipal boundaries of the city.

                                              Yours very truly,




                                      &A%?=-
                                            Attorney General of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
