                               The Attorney General of Texas
                                                      Ikty 14. 1985
JIM MATTOX
Attorney General



Supreme Court Bullding        Honorable Henry WaLe                                    Opinion   No.    m-318
P. 0. Box 1254a               Criminal District   Attorney
Aurlin.Tx.  18711-2548        Dallas County Servj.c.es Building                       He: Disposition    of appeals from
51214752cm                    Condemnation Sectic,m,                                  from justice  of the peace courts
Tolox 010/87C1367
                              Dallas,  Texas.   751,Cs2                               under article   1970-31.2. V.T.C.S.
Tdeco9ler 512l47502S6

                              Dear Mr. Wade:
714 Jackson. Suite 700
Dallas. TX. 752024SOe               You inform us that a problem is presented     In the construction     of
2w742aw4
                              section  2, of article   1970-31.2,  V.T.C.S..  as to vhat procedure the
                              county clerk is to employ in filing    cases appealed from the justice      of
4824 Albam Ave.. Suite 180    the peace courts   to the several county courts at law.       You also inform
El Paso. TX. 799052793        us that   the Dallar, County Clerk is presently      filing    these appealed
915633-34s4                   cases "as they come! in" rather than "in rotation."        In that regard you
                              ask:
1001 Texas. SuiW 700
Houslon, TX. 77002.3111                  [Wlhethex       section     2   of     article     1970-31.2,
713223688K                               V.T.C.S.,,    requires    the county clerks to set vp a
                                         special     procedure    to process     and file     'appealed
                                         cases'     4IEi a separate     category      of cases     (like
9W Broadway. Suite 312
Lubbock, TX. 79401-3479
                                         eminent domain proceedings),         or vhether the county
K&747-5238                               clerk    nu;y treat     'appealed     cases'    in the same
                                         manner all the case filed under section           31
 43W N. Tenth. SuiCe B        We   conclude   that     article 1970-31.2,   section    2. V.T.C.S..   does not
 McAllen. TX. 78501.1886
 512N2-4547
                              require the Dallas       County Clerk to establish    a separate procedure.     We
                              believe    that the     countv clerk Is required       to treat   these appealed
                              cases in the same       winner as other caaea filed under article      1976-31.2.
 200 Main Plaza, Suits 4OQ    section 3, V.T.C.S.
 San Antonio, TX. 782052797
 512/225-4191
                                   Article      1970-:Il..2.   section        2 provides    in part:

                                                 Sec.    il. All   civil cases   appealed  from the
                                             several    jwtlce   courts of Dallas County shall be
                                             filed    by the county clerk in the several       count1
                                             courts o? Dallas County at law consecutively           as
                                             the appe,;Led cases are received by the clerk from
                                             the    se&al      justices   of   the   peace   in    the
                                             county.    , . . (Emphasis added).

                                     It is     our dc,ty in construing   statutes                 to give effect to   the
                              legislative       intent  and purpose.   Patterson                v. City of Dallas,    355



                                                                         p.    1454
Ronorable   Renry Wade - Pnge 2         (JX-318)




S.W.Zd 838 (Tex. Civ. APP. - Dallas 1962, writ ref’d n.r.e.);                  53 Tex.
Jur. 2d Statutes 5125 (1964).        In addition,     we are only at liberty        to
turn to other aids of constmction          when the true intent of the statute
may not be ascertained       on its face.      See Trinity      Independent School
District   v. Walker County, 287 S.W.Zd 7y(Tex.             Civ. App. - Galveston
1956, no writ).        It is clear       that article      1970-31.2,     section   2.
V.T.C.S.,    is mandatory bec6llse it presents         circumstances      by which a
public officer     shall perfo,no his statutory        duty.     See State v. Pox.
133 S.W.2d 987 (Tex. Clv. App. - Austin 1939, writ ref’d);               Sutherland,
Statutory Construction,      V.;:P., 157.14 (4th ed. 1984).           Therefore,   the
county clerk Is required         to file    the appealed cases in the manner
declared in article      1970-3L.2,    section  2. V.T.C.S.       The ambiguity in
the statute     arises   when riection 2 is compared with’ section                3 of
article   1970-31.2,   V.T.C.S.

        Section   2, as quoted above, uses the term "consecutively"                      to
 describe    the method by whlt,h, the county clerk is to file               the appealed
 cases in the several county courts at law.                  V.T.C.S.    art. 1970-31.2.
 12.    In contrast,     section    3. which     contains     a provision     relating   to
 the filing     of cases lo general,         provides      that "each case so filed
 shall be filed       in rotation      in each of the county courts             of Dallas
 County at law. . . .I’ V.‘I’.C.S.          art.    1970-31.2,     13.    Thus, when the
 legislature    used the term “consecutively”            in section      2. and the term
 "in rotation"      in  section     3.   it arguably      intended     to prescribe     two
 methods by which the county clerk is to file                  cases in county court.
 We believe,      however, that the dominant intent                and .purpose      of the
 legislature     in enacting article        1970-31.2 was to ensure (whell court
 number 5 was created)         that: each of the five county courts at law be
 assigned an equal number of cases filed with the county clerk.

        Section 3 also provida!s for the transfer         of “any” case pending in
 the docket of the five count:y courts at law.            V.T.C.S.   art. 1970-31.2.
 13.     Those cases appealed        from the justices       of the peace may be
 included     in this transfer      along with all cases properly         within the
 jurisdiction     of the courts; and pending on the docket at the time of
 the transfer.       See generaIll,     Attorney General Opinion JM-237 (1984)
 (discussion      of the jurisdiction        of the courts       at law in Dallas
 county).      The legislature    '~8s made an exception     in the case where the
 judge     of any one of the: county            courts   has granted      a writ     of
 certiorari.       See V.T.C.S.    art.  1970-31.2,    $§2, 3.     To conclude that
 the legislaturedid        not intend to provide for the equalization           of the
 dockets     would render thie portion         of section    3 useless.     Thus, we
 construe      the filing    requi~rement in section        2 to provide      for the
  equalization     in the dockeMng of appealed cases filed            in the several
  county Courts at law from the justices          of the peace.

        As indicated    above,  the use of the word "consecutively"                      in
 section     2 and the phrase "in rotation"     in section   3 describe                 the
 manner by which cases are co be filed      in the county court.    When                the
 legislative    purpose is ascertained. the significance   of words used                may



                                        p. 1455
Honorable   llenry Wade - Pogf: 3        (Jn-318)




be restricted      or enlarged      in order to effectuate           the    1egisLative
purpose and meaning.       See
                          --    West   Texas  Utilities      Co.  v.   City   of Mason,
229 S.W.2d 404 (Tex. Civ. Pgp. - Austin).            aff’d,    237 S.W.2d 273 (Tex.
 1951).   The word “consecutively”       was firstused       by the leaislature        in
 1963 to describe    the manuer in.which cases appealed from the justice’s
courts to the county courl:s at law in Dallas county should be filed.
See V.T.C.S.      art.   197o-:I:L. 1’ 12.     Article      1970-31.1,      section    2,
i7T.c.s..   provided in part:

             [A]11    civil     cases    appealed   froo    the    several
             Justice    Courts 80:f Dallas County shall be by the
             County Clerk filed in the several County Courts of
             Dallas     County at       Law coosecutivelo        as    said
             appealed      cases    are   received.   . . .     (Emphasis
             added).

This language impliedly      repealed the language used by the legislature
in article   1970-16.     Article   1970-16. V.T.C.S.,   was enacted in 1917
and used the term “alterna~tively”       rather than “consecutively”   because
only two county courts at law existed         at that time in Dallas County.
Accordingly,  we believe    ttat when the legislature     created court number
5, the term “consecutively”       was used because it was a more appropriate
term than ‘alternatively”      when describing   how cases are to be filed in
five courts rather than tvo courts.

       “Consecutively”     is i.efined by Black’s       Law Dictiocary    (5th ed.
1979) a$ “Successive,        succeeding one another in regular order.”           The
tern “rotate”      is defined     Fn Webster’s   dictionary     as “to perform an
act. function,      or operatj,cn in turn [or]       to pass or clternate      in a
series.”     Webster’s    h’intt, New Colle8iate    Dictionary     (9th ed. 19813.
If we construe       the languz;;e of section    2 as you suggest,      the county
clerk would be permitted          to reasonably    file    cases in a particular
county court at law so long as each case received was filed              one after
the other in any one of the courts.          We believe     that this construction
is not inconsistent        with the legisl.ative       intent   to maintain equal
dockets in all courts.

       Section 2 should be read together with section 3 in order                 to give
effect   to the legislative intact.   Secticn 3 further provides:

                 sec. 3. The County Court of Dallas County at
             Law No. 5 shal:. be known as the ‘E’ Court.             The
             county clerk shall number consecutively         all casts
             filed in the county courts of Dallas County at law
             affixing    immediately tollowicc     the number of all
             cases the letter        A, B. C. D. cr E, according      to
             which county court of Dallas         Count: at law the
             case is assigned.       and each case SC filed    shall be
             filed    in rot,-.ci~   in each of the count: courts of
             Dallas County :,t    - law wlch the letter
                                  --                       designation



                                      p. 1456
Honorable   Henry   Wedc -   Pagal 4    (X+318)




            being used to denote the court   in which                 the   CJSC
            is filad. . . . I:Emphasis added).

V.T.C.S.    art, 1970-31.2,     I:)* This provision        require8 the county clerk
to perform two mandatory duties,            First,   the county clerk is to number
“all” cases filed.        and tL: provision      also requires      the clerk to file
those numbered cases “in rotation.”              Section    3, does   not exclude from
these two requirements         cases filed     with the county clerk which have
been appealed        from the      justices    of the peace.          Accordingly,    we
conclude that the requiremmt of section 2 is limited by section 3 and
that the county       clerk is mquired to file          all the cases appealed from
the justices       of the peace consecutively,          along with the other cases
 filed,   and to assign each case to the several,county               courts at law in
rotation.     along with the ,,ther cases filed.             The only cases excepted
 from this    filing    requirement are eminent domain cases.              See Property
Code 521.013(d)       (clerk is to assign an equal number of emxnt                 domain
 cases “in rotation”).

                                       SUMMARY

                 Article     1970-:31.2.    section      2, V.T.C.S..     does
             not require the Dallas County Clerk             to establish     a
             separate procedt.re to file appealed cases from the
             justices     of tte peace court.          The county clerk is
             required to trer.t these appealed cases in the same
             manner      as   other      cases     filed    under     article
             197.0-31.2, sectj.on 3, Y.T.C.S.


                                                        Very truly    you   ,
                                                            I


                                                  u-1                    b
                                                        JIM        MATTOX
                                                        Attorney    General of Texas

 TOMGREEN
 First Assistant     Attorney    General

 DAVID R. RICURDS
 Executive Assistant      Attorxy      General

 RO6ERTGRAY
 Special Assistant      htcorney    General

 RICK GILPIN
 Chaimnn, Opinion       Comicce?

 Prepared by Tony Guillory
 Assistant Attorney General



                                              p. 1457
Hmorable   Hcnr; Wade - Page 5    (X3-318)




APPROVED:
OPINIOA COMNITTEE

Rick Gilpin.    Chairman
Jon Bible
Colin Cerl
Susan Garrison
'Ion)- Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton




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