Untitled Texas Attorney General Opinion, KP-0071

Texas Senate Bill 1876 (84th Leg.) amended Government Code ch. 37 to require courts that use rotation lists to appoint the person whose name appears first on the applicable list when appointing attorneys ad litem, guardians ad litem, mediators, or guardians, narrowing prior exemptions.
Courts may deviate from first-on-list appointments only if parties agree and court approves, or for good cause in complex matters (special expertise, prior involvement, geographic location).
The Bill also authorized local administrative judges to establish and maintain the required appointment lists and allowed courts to adopt rules specifying qualifications for list inclusion.
Requesters (including Judge Rory Olsen via Representative Dutton) argued the Bill: (1) unconstitutionally infringes judicial power (Tex. Const. art. II, § 1 / separation of powers) by depriving judges of appointment discretion; and (2) is unconstitutionally vague for failing to define who is "qualified" for the lists.
The Attorney General evaluated whether the appointments implicate a "core" judicial power and whether statutory terms provide adequate standards for judicial implementation, applying presumptions of validity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Separation of powers (Art. II, §1): whether §37.004 improperly intrudes on core judicial functions by dictating appointments	The Bill deprives judges of discretion in appointing ad litem counsel/guardians and thus exercises judicial power improperly	The statute concerns administrative rules for judicial appointments and list maintenance—functions tied to judicial administration, not core adjudicative power; presumption of validity applies	Unlikely unconstitutional; appointments and list administration characterized as administrative (not core) judicial functions, so statute does not violate separation of powers
Vagueness: whether statutory requirement to maintain lists and allow courts to set "qualifications" is unconstitutionally vague	"Qualified" is undefined, leaving inadequate standards for inclusion on lists	The judiciary is capable of reasonably applying broad standards; precedent accepts general statutory standards; courts may adopt local rules to specify qualifications	Unlikely unconstitutional as vague; the term "qualified" and delegated procedural rules provide sufficient guidance

Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157 (Tex. Crim. App. 2008) (framework for separation-of-powers analysis and core judicial functions)
In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005) (presumption of statute validity)
State v. Williams, 938 S.W.2d 456 (Tex. Crim. App. 1997) (legislature authority over judicial administration)
Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) (distinguishing administrative rules from substantive judicial power)
Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) (limits on legislative imposition of rules of court that infringe judicial power)
Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015) (plaintiff bears burden to show statute unconstitutional)
Proctor v. Andrews, 972 S.W.2d 729 (Tex. 1998) (analysis of delegation and meaning of "qualified" in statutory selection contexts)
Davis v. Tarrant Cty., 565 F.3d 214 (5th Cir. 2009) (noting judges have limited discretion under rotation systems; deviation allowed only for good cause)