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                                              The Attorney         General of Texas
                                                              April 19, 1983
    JIM MATTOX
    Attorney General


                                            Honorable Frank Tejeda                 Opinion No. JM-25
    Supreme      Court Building
    P. 0. BOX 12546
                                            Chairman
    Austin,    TX. 76711. 2546              Committee on Judicial Affairs          I&: Whether House Bill No. 332,
    5121475-2501                            Texas House of Representatives         creating a new district court
    Telex    9101674.1367                   Austin, Texas   78769                  for Henderson County violates
    Telecopier     5121475-0266                                                    article IV, section 12 of the
                                                                                   Texas Constitution
    1607 Main St., Suite 1400
    Dallas, TX. 75201.4709                  Dear Representative Tejeda:
    2141742~6944
                                                 You have submitted questions about the constitutionality of House
    4624 Alberta       Ave.. Suite    160
                                            Bill No. 332, Sixty-eighth Legislature, Regular Session (1983), which
    El Paso, TX.       79905-2793           proposes, among other things, to remove Henderson County from the
    9151533-3464                            173rd Judicial District, create a new judicial district composed of
h
                                            only Henderson County, create the office of district attorney for the
                                            newly created district, and divest the district attorney of the 3rd
      ~20 Dallas Ave.. Suite         202
    Houston,      TX. 77002-6966
                                            Judicial District of his powers and duties In Henderson County.
    7 131650-0666
                                                 Your first question relates to section 5 of the bill and whether
                                            the legislature by statutory enactment can designate the person to
    806 Broadway,        Suite 312
                                            fill a vacancy in the office of the judge of the newly created
    Lubbock.     TX.    79401.3479
    606,747.5236
                                            district court. Section 5 proposes the following:

                                                         On the effective date of this Act, the judge of
    4309 N. Tenth, Suite 6                            the 173rd Judicial District Court shall be
    McAllen.     TX. 76501.1665
                                                      commissioned as judge of the [new] Judicial
    5121662.4547
                                                      District, provided, however, that he shall reside
                                                      in Henderson County on that date, and further
    200 Main Plaza, Suite 400                         provided that he shall resign from his position as
    San Antonio.  TX. 76205-2797                      district judge of the 173rd Judicial District.
    5121225-4191

                                                 It is generally accepted that the power to appoint persons to
    An Equal      Opportunity/              public office is by its nature an executive function, but the power of
    Affirmative     Action     Employer     appointment belongs where the people have chosen to place it by their
                                            constitution or laws. Although the power of appointment is not per se
                                            an executive function under the doctrine of separation of governmental
                                            powers, if a constitution expressly confers it on the executive
                                            department, the legislative department may not exercise the power of
                                            appointment by legislative enactment.       See, e. ., Springer v.
                                            Government of Phillippine Islands, 277 U.S. 189 (1928); Myers V.
                                            United States, 272 U.S. 52 (1926); Wittler V. Baumgartner. 180 Neb.




                                                                          p. 108
Honorable Frank Tejeda - Page 2    (JM-25)




446, 144 N.W.2d 62, 71 (1966); Howell v. Howell, 213 Ark. 298, 208
S.W.2d 22. 25-26 (1948); Tucker v. State, 35 N.E.2d 270 (Ind. 1941);
Lasher v. People, 183 Ill. 226, 55 N.E. 663 (1899). The Texas
Constitution does expressly confer on the governor the power to fill
vacancies in certain offices by appointment.

     Article II, section 1, of the Texas Constitution, divides the
powers of government between the legislative, executive, and judicial
departments and prohibits any of those departments from exercising the
power belonging to either of the other departments, except as
expressly provided by the Texas Constitution. Article IV, section 12,
provides that all vacancies in state or district offices, except
members of the legislature, shall be filled by appointment of the
governor, unless otherwise provided by law. Article V, section 28,
when construed together with article IV, section 12, relates
specifically to certain judicial offices and provides that vacancies
in the office of judges of the appellate courts and the district
courts shall be filled by the governor with no provision for providing
otherwise by law. The Texas Supreme Court has stated that if an act
creates a new district court, it creates a new office and an attempt
to appoint the judge by legislative action is null and void, as it is
not a legislative power to appoint district judges.         It is an
executive power by the plain terms of the Texas Constitution. State
v. Manry, 16 S.W.2d 809, 812-813 (Tex. 1929). Accordingly. the
legislature cannot designate the person to fill the newly created
district court.

     Under article XVI, section 14, of the Texas Constitution, which
works a self-enacting vacation of office on the failure of a district
officer to reside in his district, a person holds an office subject to
the constitutional right of the proper authority to alter the
territory in which he performs his powers and duties and thereby to
deorive him of his office before the exuiration of his term. See
Chambers v. Baldwin, 282 S.W. 793 (Tex. Comm’n App. 1926, judz
adopted); Prince v. Inman, 280 S.W.2d 779 (Tex. Civ. App. - Beaumont
1955, no writ), 47 Tex. Jur. 2d Public Officers, 97, at 8. If we
presume correctly that the present judge of the 173rd District Court
resides in Henderson County, we b&&e      the office of the judge of
that court would become automatically vacant on the effective date of
House Bill No. 332 which removes Henderson County from the district.
Furthermore, notwithstanding the provisions of section 5 of the bill,
the legislature by statutory enactment cannot designate the person to
fill the vacancy in the office of the judge of either the newly
created district court or the 173rd District Court.

     While House Bill No. 332 does not relate to criminal district
attorneys, you also asked if there is a difference in a statutory
enactment to designate a person to fill a vacancy in the office of a
criminal district attorney and such an enactment by the legislature to




                                  p. 109
Honorable Frank Tejeda - Page 3   (JM-25)




designate a person to fill a vacancy in the office of a district
judge.   The Texas Supreme Court has defined the term "criminal
district attorney" as a class or kind of district attorney and has
determined that a criminal district attorney is a district attorney
within the meaning of the constitution. Hill County v. Sheppard, 178
S.W.2d 261, 263 (Tex. 1944); Attorney General Opinions H-473 (1974);
M-1087 (1972). Therefore, with the exception of article V, section
28, of the Texas Constitution which relates only to judicial offices,
the same provisions apply to filling a vacancy in an office of a
district judge and filling a vacancy in an office of a criminal
district attorney.

     Your second question relates to section 6 of House Bill No. 332
and whether the legislature may divest a district attorney of a
multi-county judicial district of his powers and duties in one or more
of the counties comprising the judicial district. Section 6 proposes
the addition of the following sections to article 322, V.T.C.S.:

             sec. 3. The district attorney for the 3rd
          Judicial District shall be elected by the citizens
          qualified to vote of Anderson and Houston
          Counties; the citizens of Henderson County shall
          not participate in the election of the district
          attorney for the 3rd Judicial District.

             Sec. 4. The district attorney for the 3rd
          Judicial District shall perform the duties imposed
          and have all the authority conferred on district
          attorneys by the general laws of the state within
          the counties of Anderson and Houston.         Such
          district attorney shall not be responsible for
          performing the duties of district attorney and
          shall not have the authority conferred on district
          attorneys within the county of Henderson.

     Article V, section 21, of the Texas Constitution empowers the
legislature to provide for the election of district attorneys in
districts where the legislature deems it necessary but does not
require the creation of any offices of district attorney. See Reed v.
Triplett, 232 S.W.2d 169 (Tex. Civ. App. - Waco 1950, writ ref'd).
Article V, section 21, directs the legislature to regulate the duties
of district attorneys and county attorneys in the counties that are
included in a judicial district in which there is a district attorney.
Attorney General Opinion H-1127 (1978). In exercising its power to
allocate the duties of county attorneys and district attorneys,
including criminal district attorneys, in the counties that are
included in judicial districts for which it created the office of
district attorney, the legislature on numerous occasions has divested
a district attorney of his authority and constituency in one or more




                                  p. 110
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Honorable Frank Tejeda - Page 4    (JM-25)




counties    See V.T.C.S. arts. 326k-23, 326k-32, 326k-36, 326k-45a.
326k-59,* 326k-75,   326k-76. 326k-80, 326k-81. 326k-83, 326k-85,
326k-86, 332b-2, and 332b-3. We believe that legislative enactment
divesting a district attorney of his authority and constituency In one
or more of the counties in a multi-county judicial district is
authorized by article V, section 21, and is consistent with the
legislature's own interpretation of that section of the constitution.

                              SUMMARY

             The Texas Constitution provides that a vacancy
          in the office of a district judge shall be filled
          by appointment of the governor and the legislature
          does not have the power to designate the person to
          fill   the vacancy.     The   Texas Constitution
          authorizes the legislature to divest a district
          attorney of a multi-county judicial district of
          his authority and constituency in one or more of
          the counties comprising the judicialfdistrict.
                                                         a




                                     d                    &
                                            Very t uly yours,


                                                  r\h,                  .
                                            JIM     MATTOX
                                            Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton




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