Case Information

*1 Boon. Robert L.~%;Yrk * opitioa' lb. T-851 County Attorney

Lamb County Re:JTexm time of the Ria- Littlefield, Texas trict Court, 64th 'Judi-

oia1 Dim?iot, an the ' ligrrt of ramid le is- lation mwting te f distriot.

P5ar Sir,: .*

we refer to your letter o,f aeajr 84, 1947, s,a whioh you requested anopinion of this Department and which reads in part as.follows:

"The District Court of Lamb County has been and is in the 64th Judicial Disc, trict. The last term began on the 5th Monday after the 1st bionday in January, 1947, and was supposed to continue in session until the Saturday preceding the 1st Monday in Augur&. A Grand Jury wae duly impanelled and attended te the busi- ness thea on hand. It was recessed until suoh time during the term as it might !, agaSn be needed. During this present see.- SPOB of the,Legislature, a bill was Lntro- duced, pansed and became effeotive on Ray ,Q 1947 which added Parmer County to the 64th Judicial District, This bill slight- ly changed the terms of the varioue courts in the Distrbot. Xt did Rot change the be inning date of the next term of the, Dls- tr ot Court in Lamb County. This bill made 1

no provision for ,the oantinuatlon ot the terms of, ,court then in seasion. It ia a&B-, templated, e.nd,there exists a neoessity for calling the Grand Jury in Lamb County back into eeeeion before the next term of Court, ;

"Does the February term of C,ourt oon- tinue in Iamb County until the gaturday be- fore the 1st Monday in Augurst, 19477 *2 Hon. Robert L. Kirk - Page 2

"If the Grand Jurors iRho were im- ]x. : in February were called back anelhd nto aessibn at this time;would an in-

dictment presented by them be valid?=

Upon checking the Bill in the Secretary of State's office.as passed by the Legislature, we find that it further provides that the terms of Court for Lamb County shall begin on the first Monday in February and the first Monday in August; and that eaoh term of. Court,.in each of such counties of the 64th District nay continue until the Saturday imnediately preoeding the Honday for oonvenlng the next regular term therein.

The pertinent portion of Article V, Section 7, of the State Constitution providea:

*The State shall be divided into ,ae many judioial diatriote as may now or hereafter be provided by law, whioh may be increased or dipliniahed by law . * . He shall hold the regular terms of his court at the county seat of each county in his distriot at least twioe In each year in such manner as may be prescribed by law.*

In Keaton v. Stafe, 57 S.W, 1125, the appel- lant, under facts Similar to those berore us here, con- tended that the Court at the time of his conviction;was not lawfully in $ea&on, beoauee~the Legislature had, since the convening of the Court, repealed the law fix- ing the time for holding terms of the District Court in and for Coleman County by passing an amendment fixing the tiines for holding said Courtin 'said aounty, which terminated the February term, 1899, of said Court and this Court could not again lawfully.be in session before the first Monday in September, 1899. 7Ve quote from the caee as followa:

n . . . Them regular'time for the,' convening of the term of oourt at which appellant was tried was the first Monday in February, 1899, to continue in see- . _ -. - 91011 four weeks. The Court was organized on said day. While the court was in ses- sion and being held under the then-exist- ing law, the legielature passed an act, with the .emergenQ clause attached, mere- ly addingto the term of court for Coleman *3 Hon. Robert L. Kirk .- .Page 3

county one weeks The amendment pro- for the term to begin the first vided Monday in February and to remain in session five weeks,. It will be seen from this that the beginning of the term waa not changed, ana that the olear intendment of the legislature ‘was aimply to ‘give one additional week

to Coleman county for the distriot court, and the amendment was not in- tended to have a retrospeotive effect, 60 as to repeal the then-existing term of the distriot oourt of Coleman county. Article 5, PI ,7, of the con- stitution provides: ‘The state shall be diviaed into as many judioial dis- triote as may now or hereafter be pro- vided by law, which may’ be iacreaaed or diminished by law+. Be (the die- trlot judge) shall hold the regular term of his court at the county seat of, eaoh oounty in his district at least twice each year, in such menner as may be presaribed by law. ( The bare statement o.f this oohstitutional provision would certain1 precluds the amen nt ooastruotion of the Le by the legislature as contended for b appel-, lant; his oontention being tha f the amendment repealed the previ~ua law whereby the session of the distriot oourt of Coleman county was authorized to begin on the first Monday fn Febru- ary. If this is~a repeal of the old law, then Coleman oounty would be de- prived of on% term of the diatriot court, which would be in the face of the a$n&itutional prsvision quoted l L .

In the case of Rx parte Murphy reported in 11 5. w. 487, the defendant insisted that his oonviotion was ‘illegal and void beoause rendemd at a time when a legal term of the Court could hot be had& We quote from the same as follows: o ,The facts ,are that the aaid ”

term wai ie’ld at the time“fixed bye the act of 1885, (Laws 1805, p’. 8,) that is, *4 Hon. Robert L. Kirk - 'Page 4

commencing on the fifth after the first Monday in March. On April 2, 1829, six days prior to the convening of said term, on April 8th, an aot was passed by the legislature ohangiw the time of holding said court in said county to the fourth Monday in Uarch.~ This act contains an emergency clause, and declares that it shall take effect from.its passage. Ap- plicant contends that after the passage of said aot of April 2, 1889, a legal term of the dietriot oourt for Karnea county could not be held, except at the times prescribed by said act:

*We are of opinion that the term of the oaurt at whioh the oonviotion was had was a legal term. If it were held' otherwiee, the effeot woulU be t&deprive Karnes county of on0 term of said court for the present year, when the constitu- tion dealares that twu terms of the dis- trict court shall be held each year sin eaoh county. Con&, Art. 5,I3 7, In-con- struing an act of .the legislature,, It is the duty of the court to so interpret‘the legislative iatent as to harmonize the pr@YiSiOi.M of' the sot with the oonstitu- tion, if this can be,done rea,eonably,& It must be presumed that the legislature did not intend to disregard the above-cited provision of the oonatitution by depriv- ing Karnes or any other'county of the disc triot of the oonstitutfonal right to have two terms of the diatriot court in each year. If such was the intent, the act would be void, and the courts in that dis- trict would have to oontinue to be held at the times fixed by the old law. Wotwith- standing the emergency clause'in said abt of April 2d, we feel justified in ho&ding thatit uas not the legislative intent that said act should immediately take ef- feot, but that it should become operative only at a time whsn it would not deprive any oounty in the district of~,two terms of court, , r"

In view'of the foregoing, you are respect- *5 Hon. Robert L. Xirk - Page,45 '>

fully adrieed that it is the opinion ot this Department that the February term of Court continues in Lamb Coun- iig4ytil the Saturday before the iirat Monday in August,

. (8~ aleo Bowden, et al, Y. Crawford, 195 S.W.5)

This being true, it naturally follow6 that the second question is answered in the arfi~mative. That ia, ii the Grand Jurors who were impanelled in February were oalled back'into session at this time, an indiot- ment presented by them would be valid.

SUMMARY The preeent term of the Dietrict Court of Lamb County remaina unohanged for the re- mainder of the ,term even though the Legia; lature passed a Bili effeotive May 3~1947, changing the terms of' oerta~in counties of the 04th Judioial Distriot, of which Distriot lamb County belonga,~.ana ,although the Bill made no provision for the oontinuatioh of the terms of Court .then in ee$sion; otherwise the ,oounty ?iwouM be deprived or two full terms or Court each yeax,in violation of Article V, Seo. 9, of the State Constitution, Keaton v, State, 57 S.W. '1125; Ex parts Murphy, 11 S.W; 4870 If the 'Grand Jurora who were impaaelled in the February term wexe callea back-into session at this times an lndiotment presented by them would be valid. : Very truly yours ATTORNEY GEWBRAL 03' TEXAS BA:WR Assistant

APPROVED JURE 12, 1947 iiiii&or ,-a