           .   I




                                THEAA~TORNEYGENERAL
                                           OF,    TEXAS
                                       AURTIN,    T*‘~xAs   78711
  JOHN         L.    aILL
A1TORNEY            GrzNER.4&
                                            July 11, 1977




               Honorable Gibson D. Lewis                     Opinion No. H-1023
               Chairman, Committee on
                 Intergovernmental Affairs                   Re: Whether the Legislature
               House of Representatives                      may remove a judge in a spe-
               Austin, Texas 78711                           cial session.

               Dear Representative Lewis:

                    you have asked that we advise you on the ability of the
               Legislature to include a "Resolution of Address" for the re-
               moval of Justice Donald Yarbrough in its order of business
               in special session of the Legislature.

                    Removal of judges by address is provided for in article
               15, section 8 of the Texas Constitution.  That section pro-
               vides:

                                  The Judges of the Supreme Court, Court of
                                Appeals and District Courts, shall be re-
                                moved by the Governor on the address of
                                two-thirds of each House of the Legisla-
                                ture, for wilful neglect of duty, incom-
                                petency, habitual drunkenness, oppression
                                in office, or other reasonable cause which
                                shall not be sufficient ground for impeach-
                                ment; provided, however, that the cause or
                                causes for which such removal shall be re-
                                quired, shall be stated at length in such
                                address and entered on the journals of each
                                House; and provided further, that the cause
                                or causes shall be notified to the judge SO
                                intended to be removed, and he shall be ad-
                                mitted to a hearing in his own defense be-
                                fore any vote for such address shall pass,
                                and in all such cases, the vote shall be
                                taken by yeas and nays and entered on the
                                journals of each House respectively.

               See also V.T.C.S. art. 5964.
               --




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Honorable Gibson D. Lewis - Page 2    (H-1023)


     If there is any barrier to considering removal of a judge
by address during a special session, it is posed by article 3,
section 40 of the Texas Constitution.  That section provides:

           When the Legislature shall be convened in
         special session, there shall be no legis-
         lation upon subjects other than those des-
         ignated in the proclamation of the Governor
         calling such session, or presented to them
         by the Governor; and no such session shall
         be of longer duration than thirty days.

See also Tex. Const. art. 4, 5 8.
--
     The precise question was considered in reference to im-
peachment by the Texas Supreme Court in Ferguson v. Maddox,
263 S.W. 888 (Tex. 1924). The House of Representatives filed
articles of impeachment against Governor Ferguson during the
Second Called Session of the Thirty-fifth Legislature.  House
Journal, 35th Leg., 2nd Called Sess., 78-104. The Senate trial
began in the Second Called Session: Senate Journal, 35th Leg.,
2nd Called Sess., 114; and was concluded in the Third Called
Session. Senate Journal, 35th Leg., 3rd Called Sess., 996.
Governor Ferguson argued that his failure to include impeach-
ment in his proclamation convening the Second Called Session
of the Legislature prevented the consideration of the subject.

     The Supreme Court considered the nature of the impeach-
ment function and specifically noted the similarity between
impeachment and the criminal justice process. The Court con-
cluded that the powers of impeachment
          are essentially judicial in their nature.
          Their proper exercise does not, in the
          remotest  degree, involve any legislative
          function.

            .   .   .   .

          Without a doubt, [the Legislature] may
          exercise them during a special session,
          unless the Constitution itself forbids.
          It is insisted that such 'inhibition is
          contained in article 3, 5 40, which pro-
          vides that legislation at a special ses-
          sion shall be confined to the subjects




                            p. 4226
Honorable Gibson D. Lewis - Page 3   (~-1023)



         mentioned in the proclamation of the
         Governor convening it. This language
         is significant and plain. It purposely
         and wisely imposes no limitation, save
         as to legislation. As neither House
         acts in a legislative capacity in matters
         of impeachment, this section imposes no
         limitation with relation thereto, and the
         broad power conferred by article 15 stands
         without limit or qualification as to the
         time of its exercise.

Ferguson v. Maddox, supra at 890-891.

     If removal by address is a judicial rather than a legis-
lative process, it may be considered in a special session even
if the Governor does not include the subject in his proclama-
tion calling the Legislature into session.

     On at least three occasions the Texas Supreme Court has
indicated that removal by address is essentially a judicial
proceeding.  The Court said:

            In all of the methods provided for re-
          moval of a judge, the judge is entitled
          to a full and fair trial on the charges
          preferred against him.

Matter of Carrillo, 542 S.W.2d 105, 108 (Tex. 1976).   And

          the judge is guaranteed a full and fair
          trial on the charges preferred against
          him, whether the charges be by way of
          articles of impeachment . . . or by way
          of legislative address to the Governor. . . .

In re Laughlin, 265 S.W.2d 805, 808 (Tex. 1954), appeal dis-
missed sub. nom., Laughlin v.' Wilson, 348 U.S. 859 (1954).And

          under every mode of removal expressly pro-
          vided by [article 151 an officer is,given
          the important safeguards of a trial, in-
          cluding formal written charges, notice, and
          an opportunity to be 'heard. . . . Even by
          address of two-thirds of both Houses, the
          Governor cannot remove any judge until the
          written causes for removal are stated at
          length in the journals and have been 'noti-
          fied to the judge so intended to be removed,



                           P. 4227
Honorable Gibson D. Lewis - Page 4    (H-1023)



            and he shall be admitted to a hearin .in
                                          duch
            his own defense before any vote
            address~ shall pass.'

y;enf,ield v.~ State ex 'rel. Allred, 73 S.W.Zd 83, 86 (Tex.
 9 4) (emphasis by court). The historical development of ad-
dress is that it has become a quasi-judicial proceeding in
which a hearing has been afforded.    Shartel, Retirement and
Removal of Judges, 20 Journal of the American Judicature
Society 133, 147.

     Since removal of judges by address is a quasi-judicial
proceeding, the Legislature may utilize this procedure in a
special session even if the subject is not included in the
Governor's proclamation calling the Legislature into session.

                          SUMMARY

            Removal of judges by address is a quasi-
            judicial proceeding and may be considered
            in a special session even if it is not
            included in the Governor's proclamation
            calling the Legislature into session.

                                Very truly yours,




                                Attorney General of Texas

APPROVED:




c. ROBERT HEATH, Chairman
Opinion Committee

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