        THEATTORNEYGENERAL
                       OFYrExAS
                       AUSTIN   1%.TExAe

                          December 19, 1963

Honorable Joe Resweber                     Opinion NO. c-198
County Attorney
Harris County                              Re:   Method of selecting
Houston, Texas                                   party nominees for the
                                                 office of Judge of the
                                                 165th District Court
                                                 for the 1964 general
Dear Sir:                                        election.
          You have requested an opinion on how party
nominations for the office of Judge of the 165th District
Court should be made for the general election in 1964.
More specifically, you wish to know whether the nomination
by a party holding primary elections should be made in the
primaries, and if not, how the nomination may be made. The
question arises because of the fact that the court will not
come into existence until June 1, 1964, after the first
primary has already been held on the first Saturday in May.
          The 165th District Court Is created b Chapter 507
Acts of the 58th Legislature, 1963 (Art. 199(161,165), v.c.sI).
This act provides for the creation of seven new district
courts. Three of the courts are created effective September 1,
1963; one is effective October 1, 1963; one is effective
February 1, 1964; and two (the 165th for Harris County and
the 167th for Travis County) are effective June 1, 1964.
The provision creating the 165th Court reads as follows:
            "Sec. 3.   Harris County.
          "(A) There are hereby created In and for
     Harris County, Texas, two (2) additional
     District Courts, the limits each of which
     shall be coextensive with the limits of
     Harris County, Texas. Said Courts shall be
     known, respectively, as the 164th and 165th
     District Courts; the 164th District Court
     shall be effective September 1, 1963, and
     the 165th District Court shall be effective
     June 1, 1964.”




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Hon. Joe Resweber, page 2 (c-198 )


          Section 6 of Chapter 507 provides:
          “The Governor shall appoint a suitable
     person as Judge, respectively, of each of
     said District Courts herein created, each
     of whom shall hold office until the next
     General Election and until his successor
     has been duly elected and qualified. At
     the first General Election after the
     creation of said District Courts provided
     for herein the Judge of each of said Courts
     shall be elected for a term of four (4)
     years. . . .II
          Section 8 of Chapter 507 contains an emergency
clause which recites that "this Act shall take effect and
be in force from and after September 1, 1963.” However,
the bill was not passed by the two-thirds record vote In
each House which is necessary to put the emergency clause
into effect.
          For parties which cast more than 200,000 votes
for Governor In the preceding general election, the normal
rule Is that nominations for offices to be filled at the
general election must be made by primary election, upon
applications of candidates filed In accordance with Article
13.12 of the Texas Election Code. V.A.T.S. Election Code,
Arts. 6.01 and 13.02. This Is also true for parties under
200,000 which choose to hold primaries. V.A.T.S. Election
Code, Art. 13.45. Article 13.12a (added by Acts 58th Leg.,
R.S. 1963, ch. 424, sec. 88) provldes methods for making
nominations for unexpired terms where the vacancy necessi-
tating the election arises too late for selecting a nominee
by the ordinary primary procedures. In other situations
where the need for the nomination and election arises too
late for nomination by ordinary procedures, the party may
nominate by any method which is sanctioned by part usage
and is not contrary to law. Gilmore v. Waples, 108 Tex.
167, 188 S.W. 1037 (1916); Kllday v. Germany, 139 Tex. 380,
163 S.W.2d 184 (1942); Williams v. Huntress, 153 Tex. 443,
272 S.W.2d 87 (1954).
          We are of the opinion that any party which is
holding primary elections In 1964 must nominate Its candidate
for the office of Judge of the 165th District Court by primary
election, under the general rules applicable to nominations
in the primaries. Although the court will not come into
existence until June 1, 1964, the act creating the court
became a law, for the purpose of giving notice of Its contents,


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Hon. Joe Resweber, page 3 (C- 198)


on August 23, 1963, 90 days after adjournment of the session
at which It was passed. Popham v. Patterson, 121 Tex. 615,
51 S.W.2d 680 (1932); Anderson v. Penlx, 138 Tex. 596,
161 S.W.2d 455 (1942).
          In the Popham case, the second section of an act
of the Legislature, approved March 20, 1930, which Increased
the term of county school superintendents from two years
to four years, provided that "This act shall take effect
January 1, 1931." Section 3 contained an emergency clause
providing for Immediate effect, but the bill was not passed
by the vote required to put it into effect as an emergency
measure. The question before the court was whether county
superintendents elected at the general election In 1930
received two-year terms or four-year terms. The court held
that they received four-year terms, saying:
          "Appellee contends that the act of 1930
     cannot be given effect to extend the terms
     of county superintendents elected at the
     November, 1930, election to take office on
     January 1, 1931, from two to four years,
     because to do so would be to give such law
     a retroactive effect and apply Its terms
     before It became a law. We do not agree with
     this contention.
          "In construing statutes It Is the duty
     of the court to ascertain the legislative
     intent, and, when such intent Is once arrived
     at, It should be given effect; in fact, such
     Intent is the law. In determining the legls-
     latlve Intent, the court should not look
     alone to any one phrase, clause, or sentence
     of the act, but to the entire act; and this
     Includes the caption, the body of the act,
     and the emergency clause. In this connection
     we hold that, even when the emergency clause
     cannot be given effect as such, still its
     provisions may be looked to If they aid the
     court In ascertaining the legislative Intent.
          "When we apply the above rules to the
     1930 act, supra, it becomes evident that the
     clause therein, 'This Act shall take effect
     January 1, 1931,' does not mean that the
     act did not become a law until January 1,
     1931, but merely means that It did not have
     effect to lengthen terms of office until

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Hon. Joe Resweber, page 4 (C-198)


     such date. In other words, if the act
     had not contained the clause just quoted
     its effect would have been to lengthen
     the terms of those already in office
     from two to four years, and would have
     done away with the election of elective
     county superintendents at the November,
     1930, election.
          "We think that the above construction
     of the 1930 act Is rendered certain by the
     terms of Its emergency clause, which pro-
     vides that It shall take effect from and
     after Its passage. It Is true that the
     act did not pass with the recorded vote
     required to put It Into Immediate effect,
     but, had the Legislature Intended that
     the act should not become a law until
     January 1, 1931, there would have been
     no purpose In having an emergency clause
     at all. Had the act passed by the recorded
     vote required to put It Into Immediate
     effect, all persons Interested would have
     had Immediate notice that county super-
     intendents elected in November, 1930, to
     take office January 1, 1931, would hold
     a four-year term. As the act did not
     get the required recorded vote to put
     it into Immediate effect, this notice
     did not become operative until the act
     became a law, which was 90 days after the
     adjournment of the Legislature or about
     June 20, 1930.
          “Appellee contends that the 1930 act
     could not be effective as notice until It
     became a law, citing Missouri, K. & T. Ry.
     Co. v. State, 100 Tex. 420, 100 S.W. 766.
     We agree with this contention. No act of
     the Legislature Is operative as notice
     until it becomes a law, but it Is so
     operative as soon as It does become a law.
     Since this act became a law, about June 20,
     1930, it operated as notice from that date
     forward. This holding Is In entire harmony
     with the holding In Missouri, K. & T. Ry.
     Co. v. State, supra.”
          In Anderson v. Penix, supra, an act approved on


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         Hon. Joe Resweber, page 5 (C-198)


         July 23, 1941, provided for reorganization of the 30th
         Judicial District, then composed of Wichita;Archer; Andy
         Young Counties, bye transferring Archer and Young Counties
         to other districts, leaving the 30th District to consist
         of Wichita County only. Section 6 of the act provided that
         "This Act shall take effect and be In operation on and
         after January 1, 1943." Section 8 was an emergency clause
         providing for Immediate effect, but the act was not passed
         with a two-thirds record vote. The question before the
         court was whether the voters of Young and Archer Counties
         should participate In the nomination and election of the
         district attorney for the 30th district at the 1942 primary
         and ~general elections. The court held that the office
         should be filled by the voters of Wichita County only,
         saying:
                   I,      The Act became a law ninety
              days afier ihe adjournment of the Legis-
              lature which enacted It. Popham v. Patterson,
              supra. At that time It became effective,
              except as to certain matters which were
              postponed until a later date. The law gives
              notice as soon as hit becomes a law. Popham
              v. Patterson, supra. When the provision
              In regard to the effective date is con-
              sidered with the balance of the Act, It Is
              evident that the Legislature only intended
              thereby to postpone operation of the
              courts affected until January 1, 1943.
              The Act also demonstrates an Intention to
              permit all elected officers to serve out
              their terms of office. The act did not
              Intend that offices now occupied by
              officers whose terms of office expire on
              January 1, 1943, shall be filled for
              terms beginning on that date by the voters
              of the counties which will not be In the
              district which such new officers will serve.
              The effect of our decision Is that Wichita
              County alone will elect the district
              attorney for the 30th district. . . .n
                   While operation of the 165th District Court Is
         postponed until June 1, 1964, the act creating the court
         became effective to give notice of its creation and of the
         election of a judge at the general election in 1964 long
         before the deadline for candidates to file in the 1964
         primary elections. Under these circumstances, we are
         of the opinion that nominations for the office will be
         governed by the normal rules applicable to regular full

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Hon. Joe Resweber, page 6 (C-198    )


terms of office, and parties holding primary elections must
make their nominations In the primaries. The situation Is
similar to that In the Anderson case, except that here the
court will come Into existence after the primary election
and before the general election, rather than after both
the primary and the general election. It Is dlstlnguishable
from the situation In Williams v. Huntress, 153 Tex. 443,
272 S.W.2d 87 (1954), wherein the Supreme Court upheld a
nomination made by the state convention of the Democratic
Party for a new district judgeship. The controversy in
that case was between a nominee sele&ted:byYthe state
convention and a nominee selected by the county convention
(the district consisted of only one county), It being
taken for granted both by the litigants and by the court
that the new office had been created 'in such a fashion
that the nominee Is not selected at the regular primary."
The act creating the new court (Acts 53rd Leg., 1st C.S.
1954, ch. 51) provided that the court "shall come Into
existence on September 1, 1954." It was passed at a
special session of the Legislature which adjourned on
April 13, 1954, and It became a law on July 13, 1954, 90
days after adjournment. In the year 1954 the first primary
election was held on the fourth Saturday in July, subsequent
to the date on which the law became effective to give notice
of Its contents, but the filing deadline for the primary
was the first Monday In May. On that deadline date the act
creating the court had not become law and therefore was not
effective as notice that the office was to be filled at the
1954 general election. Popham v. Patterson, supra. Con-
sequently, the provisions of th Election code requiring
nomination by primary election &d not a ply. Meyers v.
Smith, 314 S.W.2d 631 (Tex.Clv.App. 1958P .
          Brown v. Meeks, 96 S.W.2d 839 (Tex.Civ.App. 1936,
error dism.) I      ther case which should be noticed. On
June 1, 1936: t~ea~~mmlssloners Court of Bexar County adopted
an order redividing the county Into justice precincts, to be
effective as of January 1, 1937, and provided In the order
that the precinct officers should be nominated and elected
in the 1936 elections in accordance with the precincts as
defined In the order. The filing deadline for the primaries
was the Saturday before the third Monday In June. Art. 3113,
R.C.S. 1925. In an election contest between opposing
candidates in the 1936 Democratic primary for nomination to
the office of constable of redefined Justice Precinct No. 1,
the Court of Civil Appeals held that the attempted nomination
of a candidate for constable of the redefined precinct was a
nullity and that neither candidate could be declared the
nominee. The court said:

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I.   ,   ,.
                                         .   ,,




              Hon. Joe Resweber, page 7 (C-198 )


                        "It Is clear from what has been said
                   above that,'under the plain provisions of
                   the election statutes, persons cannot
                   become candidates for an office that does
                   not exist, nor can voters cast their
                   ballots for such candidates." 96 S.W.2d at
                   843.
              At another point the court said:
                        'I. . .@$7hen the commlsslonerst
                   court attemp s to determine who may
                   become a candidate or vote in such new
                   districts, It Is attempting to legislate
                   upon a subject over which it has no
                   jurisdiction. The Legislature of this
                   state has fixed the qualifications of
                   candidates for the office of constable,
                   or any other precinct officer, article
                   2927, R.S. 1925, and the commlsslonersl
                   court cannot add to or take from these
                   quallflcatlons. . . . The Legislature
                   is the supreme legislative power of the
                   state, and, where an order of the
                   commissioners court conflicts with a
                   proper legislative act, the order must
                   give way and the act of the Legislature
                   prevail.' 96 S.W.2d at 842.
                         It 1s readily apparent that the Brown case reaches
              a different result from that reached in At-&?%    v. Penlx.
              Perhans the cases can be reconciled on the ground that the
              Brown-case Involved action by the commissioners court, whereas
              thenderson    case Involved an act of the Legislature. Be
              that as It may, the Anderson case was decided by the Supreme
              Court subsequent to the decision In the Brown case, and we
              therefore feel no hesitancy in followlng%%?later    decision.
                        It may also be observed that the term of office for
              which the election will be held In 1964 Is a full four-year
              term. Sec. 6 of Chapter 507, supra; Eades v. Drake, 160 Tex.
              381, 332 S.W.2d 553 (1960). Rules as to wnetner an election
              to fill an unexpired term may be held before occurrence of
              the vacancy are not In point.

                                             SUMMARY
                        The Act creating the 165th District Court
                        became effe~ctiveon August 23, 1963, to
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Hon. Joe Resweber, page 8 (C-198)


          give  notice of the court’s      creation and
          of the @lectlon of a judge at the 1964
          general election, although the court will
          not come Into existence     until   June 1,
          1964.   Candidates at the 1964 general
          election for the judgeship of this court
          should be nominated by normal nominating
          procedures. Parties holding primaries
          must nominate  their candidates by primary
          election.
                                    Yours    very truly,
                                    WAGGONER CARR
                                    Attorney General



                                            Mary   Ii.   Wall
                                            Assistant
MKw:sj

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
V. F. Taylor
Ben Harrison
Howard Mays
Jerry Brock
APPROVED FOR THE ATTORNEY GENERAL
BY: H. Grady Chandler




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