                                            R-178


                       i#?NE+Y GENIE
                    OFTEXAS




                        March 20, 1947


Hon. WillFam R. Hensleg            Opinion No. V-94
Criminal District Attorney
Bexar County                      Re:    The matter of juris-
San Antonio, Texas                       diction over felony
                                         cases of the Dlstrlct
                                         Courts of Bexar County.
Your letter requesting an opinion involving the above titled
subject matter contains the following:
      "1 . Opinion is hereby requested as to whether
   Sections 1 and 3 of the Acts of 1939, 46th Legis-
   lature, P. 168, Sec. 1, (Vernon's Ann. Civ.
   Statute, Title 8, Art. 199) (Vol. 1, p. 163 of
   the pocket part) is in conflict with Art. 5,
   Sec. 8 of the Texas Constitution Insofar as the
   above cited statute conflicts with Acts of 1935,
   44th Leg., p. 498, Chap. 209 '(Vernon'sAnn.
   C.C.P., Title 2, Art. 52-1613 and~~whethersuch
   conflict repeals the Act of 1935 above cited; ***.
      "2 . In view of the above cited section of
   the Constitution and decided cases construing
   that section of the Constitution, is that portion
   of the 1939 Act, above cited, (which is in con-
   flict with Acts of 1935 above cited, and which
   therefore by virtue of Sec. 3 of the Acts of 1939,
   repeals Acts of 1935), unconstitutional? If so,
   does the 1935 act still stand and allow free
   transferability of criminal cases within the dis-
   cretion of the Judge of the Criminal District Court
   of Bexar County.
      "3. The foregorng questlon is posed in view of
   the fact that the said Criminal District Court of
   Bexar County Is a specially created Court with
   limited powers, assuming that the Act of 1935 is
   repealed by the'Act of 1939, and that the Act of
   1939 is constitutional, does the Criminal District
   Court of Bexar County have the power to transfer
   criminal cases to the District Court sitting as
   District Courts of their own particular districts?
   If this question is answered in the negative, can
   two or more Dlstrfct Judges of the administrative
Hon. William N. Hensley    Page 2    (v-94)


     district try criminal cases simultaneously with
     the Criminal Dlstrkt Judge of Bexar County In
     aid of said Criminal District Court?"
       We shall consider your questions in the order presented,
numbering our replies thereto in the same order.
                           ..,
       (1) House Bill No. :362~,Chapter 9, of the General Laws
of the 46th Legislature, provides:
        "The District Courts of the 37th; 45th, 5j'th,and
    73rd Judicial Districts shall have concurrent juris-
    diction throughout and co-extensive with the ter-
    ritorlal limits of Bexer County of all civil matters
    of which jurisdiction is given to the District
    Courts by the Cbnstitutlon  end laws of the State
    In all civil cases , proceedings and matters of which
    the District Courts are given jurisdiction by the
    Constitution end laws of the State. None of said
    four (4) District Courts shell have or exercise
    any criminal .iurlsalctionin Bexar County."
    -(Emphasisours.)
       This last provision (underscored) 1s crearlg unconstftu-
tional and void. There is no severability clause in the Bill
end It 1s apparent that the lest sentence contained the main
;yoE;;e of the Bill.   Therefore, the whole Act is unconstitu-
      .
       Section 8 of-~ArtlcleV of the Constitution, first sen-
tence thereof, declares:
       "The District Courts shall have original jurls-
    aictlon in all criminal cases of the grade of felony."
       The Bill cannot stand as the law in the face of this Con-
stitutional language.
         In Castro
                 v. State, 60 S.W. (2d) 211, preslaing Judge
Morrow In overruling the application to file a second motion
for rehearing, seld:
        "The conceded power of the Legislature to
     create other courts having jurisdiction In crim-
     inal cases of the grade of felony has not been con-
     strued to strip the district courts created under
     the Constitution of the inherent jurisdlctjon to
     try cases of the grade of felony. Throwing some
     light upon the subject is the case of Hull v. State,
     50 Tex. Cr. R. 607, 100 S.W. 403.
Hon. Willlam N. Hensley   Page 3     (v-94)


       "From the case of Ex parte Coombs, 38 Tex. Cr.
    R. 643, 663, 44 S.W. 854, 861, the following
    quotation Is taken: 'Wherever the constitution
    vests judicial power, it must so remain, and the
    legislature has no right to invade it or suspend
    it, unless express authority is given in that ln-
    strument. The legislature has no authority to-
    change the organization of the judicial system,
    nor can that body, under the guise of creating
    "other courts', divest the district court or the
    justices of the peace courts of their constitu-
    tional jurisdiction.'"
       In Reasonover v. Reasonover, 58 S.W. (2d) 817, Justice
Pierson of the Supreme Court, said:
       "The Legislature cannot take away from a dls-
    trict court jurisdiction given it by the Consti-
    tution. Jones et al v. Soch et al (Tex. Civ. App.)
    277 S.W. 171 (writ refused); St. Louis S.W, Ry.
    CO. V. Hall, 98 Tex, 480, 85 S.W. 786, 788; 11
    Tex. Jurisprudence, 8 5, pp. 706, 707, 708."
       These holdings are but the pronouncement of well-estab-
lished principles of constitutional law.
       Since the act is void in the respect pointed out, it fol-
lows that it does not operate to repeal any prior act of the
Legislature whatever. Being a nullity,  it has no force or legal
effect whatever.
       (2) What we have said above Is applicable alike to your
second inquiry. The 1935 Act thereforestill stands and operates
precisely the same as if the 1939 Act had never been passed.
             n view of what we have said as to the validity of
the 193~3~ct1 it becomes unnecessary for us to answer your
third questi&.
                           SUMMARY
       1. Chapter 9, House Bill No. 362 of the Reg-
    ular Session of the 46 th Legislature (1939) at-
    tempting to deprive the 37th, 45th, 57tb, and 73rd
    Judicial District Courts of all criminal jurisdiction
    In Bexar County, is void as being in violation of
    Article V, Section 8 of the Constitution.
       2. Since the act of 1939 is void, it does not
    operate to repeal any prior law and the act of 1935
Hon. William N. Hensley     Page 4   (v-94)


    affecting the same subject matter - the jurlsdictlon of
    the respective District Courts of Bexar County -
    stands as the law governing the transferability of
    criminal cases in the District Court of Bexar County.
                                Yours very truly,
                             ATTORNEY GENERAL OF TIXAS

                                By s/ Ocie Speer
                                      Ocle Speer
                                      Assistant
APPROVED MAR 26, 1947
s/Price Daniel
ATTORNEY GENERAL OF TEXAS
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