                                                       October             25,     1973


The     Honorable        Dolph        Briscoe                                              Opinion        No.     H-    134
Governor         of Texas
State     Capitol                                                                          Re:     Governor’s            apppointive
Austin,      Texas                                                                                 power        under       $ $4     and    5
                                                                                                   of Senate        Bill       52,   63rd
                                                                                                   Legislature,              creating
Dear      Governor       Briscoe:                                                                  new     judicial         districts

          You    hatie asked           this        office     for     an opinion               concer~ning        your       appointive
powers      under       certain        new         judicial         districts           created        by Senate        Bill       52 of
the 63rd        Legislature,           (Acts         1973,          63rd    Leg.,          ch.     316,    p. 731).

          You    have       referred             us to Sections             4 and         5 of the bill,          which        amend
Article     199a,     Vernon’s              Texas       Civil        Statutes:

                               Sec.         4.    ‘I ’ [Article            199a,        Vernon’s          Texas
                    Civil     Statutes],             is amended              by adding             Sections
                    3. 041-3.         042        to read      as follows:

                               ‘Sec.         3. 041.        The       213th       Judicial         District,
                    composed            of the County                 of Tarrant,                is hereby        created.

                               ‘Sec.         3. 042.          (a)    The     214th        Judicial        District,
                    composed            of the County                 of Nueces,               is hereby         created.

                               ‘(b)    The         214th      District           Court         shall   give     prefer-
                    ence      to criminal              cases.         ’

                               Sec.         5.      ” ’ [Article            199a,         Vernon’s         Texas
                    Civil     Statutes],              is amended                 by adding         Section        3. 043
                    to read       as    follows:

                               ‘I ’ Sec.           3. 043.          (a)    The         215th    Judicial        District,
                    composed            of Harris              County,            is    created.




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    The      Honorable          Dolph      Briscoe,           page      2     (H-134)




                                     ” ’ (b)       The        215th    District           Court          shall       give
                         preference          to civil         matters.          ’”


                                     “Sec.         7 .    .    . .


                                     “(c)     The        provisions            of Section         4 of this            Act
                         take     effect     January           1, 1975.


                                     “(d)     The        provisions            of Section            5 of this          Act
                         take     effect     January           20,     1975.       ”


              Your      letter     states:


                                     “I respectfully                  request          an offitiial           legal
                         opinion        of your       Office         as to whether              I have           any
                         appointive          power        in connection                 with    appointment                 of
                         judges      to these         courts          and,     if so,      when           is the proper
                         time     to make          these       appointments?                ”


              Article       5,    5 28,     of the Texas               Constitution             provides              in part:         “Vacancies    ,’
    in the office          of Judges        of the Supreme                   Court,       the Court              of Criminal             Appeals,
    the     Court      of Civil     Appeals,          and       Dist?ict’Courts’                         shall        be filled        by the Gov-
    ernor      until     the next       succeeding             General          Election.            .    .    . ”


              Section       2. 005      of Article            199a,    V. T. C. S. , provides:


                                     “The      di,strict         judge        of each          new       district
                         created        by this       Act      shall        be appointed             by the governor
                         in the manner             prescribed                by the constitution                     and laws
                         of the State         of Texas           and shall              serve     in such            capacity
                         until    the next         succeeding               general        election            and until         his
                         successor           has    been        duly     elected          and has             qualified.         ”


              We     believe       that     the Legislature                  has       manifested              a clear        and unambiguous
    intention       that    the judicial           offices       established              in the above                quoted         provisions
    shall     not become           effective   until            January   1, 1975,   and January  20, 1975,   respect-
    ively.      Postponing           the effective              date of this legislation   was clearly  within the




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             The     Honorable         Dolph      Briscoe,             page         3    (H-134)




             province         and power         of the Legislature.                       Norton         v.     Kleberg       County,231
             S. W.      2d 716 (Tex.           1950);        Rudco      Oil     & Gas           Company           v.    LeMasters,            146
             S. W.      2d 806      (Tex.      Civ.App.         , Esstland                ,.    1940,         error     dism’d.       jud     car.    ).


                        No vacancy           could~possibly                occur         in these        officesuntil         they    become
             effective;         and thus,       they         cannot     be filled             by the general             election         in 1974.
             It will     be the authority              and the duty             of the Governor                   to make         appointments
             to fill    these      offices      when         they     become            effective        on January           1, 1975,        and
             January         20,    1975,      respectively,               and to continue                until        the next     general
             election,        presumably              in 1976.


                        Concerning           the proper             time      for       making       such       appointments,              pro-
             spective        appointments             to these         judicial          offices        can be announced,                  but
             they      cannot      be effectively             made      until       the offices           exist,        which     will      occur
             at the time           these     office     become          effective              on January             1 and..January         20,     1975,
             respectively.             Accordingly,                 your    official           appointments              cannot      be made         until
             that    time.


 .                                                                         SUMMARY


                                               The      judicial        offices          created         by Section         4 of
                                   Senate      Bill     52,     63rd       Legislature,              and made             effective
                                   on January           1,    1975,     and the judicial                 office        created       by
                                   Section      5 of Senate            Bill     52,       63rd      Legislature,            and
                                   made      effective         on January               20,     1975,         should     be filled
                                   by appointment               by the Governor,                    which        appointment
                                   would      only     be effective             at the time             of the above-stated
                                   effective      date        of the offices.




                                                                                    Attorney            General         of Texas




             Opinion         Committee
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