                                          The Attorney           General of Texas
                                                            December 22, 1982
MARK WHITE
Attorney General


                                         Honorable John B. Holmes, Jr.            Opinion No. MW-536
Supreme   Court Building
                                         Harris County District   Attorney
P. 0. Box 12548
Austin. TX. 78711. 2548
                                         201 Fannin, Suite 200                    Re: Whether article 1813(a),
5121475-2501                             Houston, Texas     77002                 V.T.C.S., providing for terms
Telex   9101874.1367                                                              of less than six years for
Telecopier     5121475-0286                                                       appellate judges is unconstitu-
                                                                                  tional
1807 Main St.. Suite 1400
Dallas, TX. 75201.4709                   Dear Mr. Holmes:
2141742-8944
                                              You have requested an opinion on the constitutionality of article
                                         1813(a), V.T.C.S., with respect to the terms it establishes for court
4824 Alberta       Ave., Suite     160
El Paso, TX.       799052793
                                         of appeals judges.
91515333484
                                              Article V, section 6 of the Texas Constitution as amended in 1981
                                         pursuant to S.J.R. No. 36, section 5, Acts 1979, Sixty-sixth
1220 Dallas Ave., Suite           202
                                         Legislature, at 3224, authorized the legislature to reorganize the
Houston.     TX. 77002.8988
7131850.0668
                                         courts of civil appeals into the courts of appeals, with appellate
                                         jurisdiction of both civil and criminal matters within their
                                         respective districts. Pursuant to this authority, the Sixty-seventh
806 Broadway,         Suite 312          Legislature passed Senate Bill No. 265, amending article 1813(a),
Lubbock.     TX.    79401-3479
                                         V.T.C.S., to state:
8061747.5238

                                                      The Justices of each Court of Appeals shall be
4309 N. Tenth, Suite S                             elected at the general election by the qualified
McAllen,     TX. 78501.1685                        voters of their respective districts. Upon their
5121682.4547
                                                   qualification, after the first election after the
                                                   creation of any Court of Appeals, the Justices
200 Main Plaza, Suite 400                          shall draw lots for the terms of office; those
San Antonio.  TX. 78205-2797                       drawing number one (1) shall hold for the term of
5121225-4191                                       two (2) years; those drawing number two (2) shall
                                                   hold for a term of four (4) years; and those
An Equal      Opportunity/
                                                   drawing number three (3) shall hold office for six
Affirmative     Action     Employer                (6) years. Each of said offices shall be filled
                                                   by election at the next general election before
                                                   the respective terms expire; and the person
                                                   elected shall thereafter hold his office for six
                                                   (6) years.

                                         Acts 1981, 67th Leg., ch. 291, at 761.




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Honorable John B. Holmes, Jr. - Page 2   (MW-536)




     The court of appeals was originally created by article V, section
6 of the Texas Constitution, and had both civil and criminal
jurisdiction. By 1891, however, the docket of the supreme court was
so crowded that this section was amended to create the court of civil
appeals. Therein the legislature was given authority to divide the
state into supreme judicial districts and to designate the place where
the court would hold its sessions. The term of office of the justices
of these newly created courts was set at six years. However, the
terms of office ware initially staggered by a scheme provided by the
last two sentences of article V, section 6 as adopted in 1891:

          The terms of office of the Judges of each court
          shall be divided into three classes and the
          Justices thereof shall draw for the different
          classes. Those who shall draw class No. 1 shall
          hold their offices two years, those drawing class
          No. 2 shall hold their offices for four years and
          those who may draw class No. 3 shall hold their
          offices for six years, from the date of their
          election and until their succsssors are elected
          and qualified, and thereafter each of the said
          Judges shall hold his office for six years, as
          provided in this Constitution.

     Constitutional provisions relating to the supreme court and court
of criminal appeals also provide for staggered terms. See Tex. Const.
art. V, 552, 4; S.J.R. 36, $2, Acts 1979, 66th Leg., at3223;    S.J.R.
18, 94, Acts 1977, 65th Leg., at 3360.

     In 1978, art. V, section 6 of the Texas Constitution was amended
so that the courts of civil appeals could sit in sections. The
previous election staggering scheme was left in the constitution.

     When this section of the constitution was further amended in
1981. the provision for staggering the elections was removed. The
only reference to the terms of office in the current amendment is:

          Said Justices shall be elected by the qualified
          voters of their respective districts at a general
          election, for a term of six years...

     An examination of Senate Joint Resolution No. 36 reveals that
there is no transition provision applying to the terms of office for
the new justices of the courts of appeals. The original resolution
actually signed into law specifically strikes out the previous plan
calling for a drawing of lots and the staggering of the terms. _See
Resolutions and Vetoed Bills, 66th Leg., Regular Session, 1979, vol.
XXIX, p. 8453 on file in Secretary of State's Office, State of Texas.
The election staggering scheme is noticeably absent from the present




                             p.   1940
Honorable John B. Holmes, Jr. - Page 3   (MW-536)




constitution, and we believe that the legislature is without authority
to vary the constitutionally mandated term of office through the
amendment of article 1813(a).

     A similar problem exists with article 1812(c). V.T.C.S., which
was also amended by Senate Bill No. 265. This article states:

             When additional Justices of a Court of Appeals
          are elected and qualified, they shall draw lots
          for their terms of office, as provided by law for
          Justices of the Courts of Appeals after the
          initial creation of such courts.

As noted above, the constitutional provision for drawing lots was
deleted by the passage of Senate Joint Resolution No. 36. Thus, we
believe this article is also constitutionally defective.

     Several controversies have arisen concerning the term of office
for judges. In 1947 the legislature created a special district   court
in Orange County whose existence was to terminate on August 31, 1951,
"unless it shall hereafter be extended by an Act of the Legislature."
In 1949 the legislature made this special court permanent, and added
that the present judge would hold his position "until the time for
which he has been elected expires and until his successor is duly
elected and qualified." In Attorney General Opinion No. V-1055
(1950), it was held that the legislature had not created a new court
but had merely continued it on a permanent basis. Therefore, the
current district judge was entitled to hold his office for a four year
term since "[IIt  is  clear that the intention of the 50th and 51st
Legislatures was to protect the constitutional term of office of the
District Judge...." (Emphasis added). Attorney General Opinion No.
V-1055 at 5 (1950). See also State ex rel. McCall v. Manry, 16 S.W.2d
809 (Tex. 1929); Manry v. McCall, 22 S.W.2d 348 (Tex. Civ. App. -
Beaumont 1929, no writ).

     In Eades v. Drake, 332 S.W.2d 553 (Tex. 1960), the plaintiff
sought to have his name placed on the ballot for the 1960 Democratic
Party primary as a candidate for district judge. Eades contended that
the legislature, which had created the district court in 1957, had
expressly limited the first term of the new judge to two years. The
Act stated in part:

          At the first General Election after the creation
          of the one (1) district court numbered herein, the
          Judge of the said court shall be elected for a
          term of two (2) years...

Acts 1955, 55th Leg., ch. 510, 54, at 1481.   The Texas Supreme Court
held that:




                              P. 1941
Honorable John B. Holmes, Jr. - Page 4 (m-536)




         Insofar as the provisions of the statute are at
         variance with the terms of the constitution such
         provisions   are   ineffective and void.       The
         constitution provides for elective four-year terms
         for judges of permanent constitutional district
         courts and there can be no elective two-year terms
         for judges of said courts by virtue of legislative
         enactment. (Emphasis added).

Eades v. Drake, 332 S.W.2d 553, 556 (TM.   1960).

     Thus, the Texas Constitution prohibits the legislature from
lengthening or shortening the terms of offices for district judges set
out in article V, section 7 of the Texas Constitution. Article V,
section 6 of the Texas Constitution provides for a six-year term for
justices of the courts of appeals. Section 32(a) of Senate Bill No.
265, which purports to give terms of less than six years to some
justices, is at variance with article V. section 6 and is therefore
null and void. See also Tex. Const. art. XVI, 930; cf. Jordan v.
Crudgington, 231 S.W. 2d 641, 646 (Tex. 1950).

     We next address the issue of whether the constitutional infirmity
discussed above applies to the terms of office of the justices already
in place at the time of creation of the courts of appeals. Article V,
section 6 states that:

         On the effective date of this amendment, the
         Justices of the present Courts of Civil Appeals
         become the Justices of the Courts of Appeals for
         the term of office to which elected or appoin=
         as Justices of the Courts of Civil Appeals....
         (Emphasis added).

     We hold that the above evidences an intent that the justices in
place at the time of the amendment continue to hold office until their
terms normally are due to expire. This will leave the original
justices in a staggered election formation. It should be emphasized
that the election staggering scheme was constitutionally mandated at
the time each original justice thereunder was elected. As the
constitution presently stands, each newly added justice IS entitled to
a six-year term from the time of the first general election after
creation of any court of appeals or the addition of new judges to an
existing court.

     We lastly turn to the question of whether, in view of our
conclusion that the staggering scheme is unconstitutional, the whole
of the statute fails.      Since Senate Bill No. 265 contains no
severability or savings clause, article lla, V.T.C.S., is applicable.
This statute provides as follows:




                               p. 1942
.   ,


        Honorable John B. Holmes, Jr. - Page 5   (Mw-536)




                     section 1. Except to the extent otherwise
                  specifically provided in a       statute enacted
                  previously or in the future, if any provision of a
                  statute or its application to any person or
                  circumstance is held invalid, the invalidity does
                  not affect other provisions or applications of the
                  statute which can can be given effect without the
                  invalid provision or application, and to this end
                  the provisions of each statute are declared to be
                  severable.

                     sec. 2. Nothing in this Act affects the power
                  or the duty of a court in an appropriate case to
                  ascertain and effectuate the intent of the
                  legislature with regard to the severability of a
                  statute.

        Senate Bill No. 265 is a lengthy and detailed statute reorganizing the
        courts of appeals. Even though section 32(a) is unconstitutional, the
        rest of the statute can be given effect without it.

                                     SUMMARY

                     The term of office for justices of the courts
                  of appeals is fixed at six years. The election
                  staggering scheme set forth in Senate Bill No.
                  265, section 32(a), Acts 1981, Sixty-seventh
                  Legislature, chapter 291, at 778 is at variance
                  with the constitution and is therefore null and
                  void. The terms of office for the justices in
                  place at the time of the amendment remain the same
                  as when they were members of the courts of civil
                  appeals. The term of office of each new justice
                  of the courts of appeals is set at six years after
                  the first general election. TlS. Const. art. V,
                  §6. The unconstitutional provision of Senate Bill
                  NO. 265 may be severed from the remainder of the
                  bill.




                                                 MARK      WtiITE
                                                 Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General




                                           p. 1943
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Honorable John B. Holmes, Jr. - Page 6   (MW-536)




RICHARD E.'GRAY III
Executive Assistant Attorney General

Prepared by Linda L. Walden
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Linda L. Walden
Bruce Youngblood




                               p. 1944
