Case Information

*1 I THEAA~TORNEYGENERAL OF, TEXAS AURTIN, T*‘~xAs

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 may remove a judge in a spe- House of Representatives 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- his own defense be- mitted to a hearing in address shall pass, fore any vote for such the vote shall be and in all such cases, and entered on the taken by yeas and nays respectively. journals of each House

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

p. 4225

. . . .: 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 degree, involve any legislative remotest 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 *3 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.

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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