Case Information
*1 _.
Honorable R. A. Weinert, Chairman
Civil Jurisprudenoe Coaaittee
The Senate
Austin, Texas
Dear Sir: Opinion No. O-3407
Re: Constitutionality of House Bill No. 466, a8 passed by the Rouse, Aats Forty- Seventh Legislature.
Your mitten request dated April 15, 1941, requesting our written opinion oonoerning the oonrtitutionality of Houee Bill No. 466 has been oonsidered.
He copy the oaption and Aot attaohed to your request as follows: “A BILL TO BE ENTITLED AN ACT
"providing that in all oounties in the State of Texas having County Courts at law, the Judge8 of suah Courts may aat for the County Judge in probate or guardianship pro- ceedings or matters, also in juvenile and ltiacy cases;
providing that any ruoh a& and judpent of any mob Judge of the County Court at Law shall be valid and binding upon all pal-ties~ the mne as if rendered by the County Judge3 providing that no additional compensation or salary shall be paid to the Judge of any such Couaty Court at Law for suoh additimal powers and duties conferred upon suah Judgea of the County Courts at Law by this aotj providing this Act shall not apply to any oounty having a population of more than three hundred and fifty thousand (SM),OOO), aooording to ths last Federal Cansus~ providing for the repealing of all laws and parts of laws in oonfliot with thie Aof; and daolaring an emergenoy.
"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 'Section 1. That the Judge of any County Court et law of this State may aot for the County Judge of the
county, during the absanoe. inability, or disqualification of the County Judge, in any probate or guardianship pro- seeding or matter, and also iti any juvenile or lunacy
Honorable R. A. Wsinart, page 2 o-3(07
case, pending in suoh County Court at the time this Aot takes effaot as wall as any suoh prooeeding or matter or aaaa thereafter instituted, and any such aot or any judmont rendomd by any Judge of the County Court at Law. while aoting for the County Judge, shall ba valid and binding upon all parties to suoh proaeedisg or matter and case the sama aa if performed by the County Judge. "Seotion 2. The absence, inability or disqualifioa- tion of the County Judge to preside shall be aertified by the County Judge or by the Commissioners Court to the Judge of any rush County Caurt at Lam, and upsn suoh osrtifioation, a oopy of rhioh shall be spnad upon the Minutes of ths appropriata Court, the Judge of any suoh County Court et.,Lav ahall ba"authorised and ampovarad to sit and aot in the plaoe and stead of the County Judge, and shall oontinus to so aot until the absence, inability or disqualification of the County Judge shall have ceased to exirt.
"Seotion 3. That n&ithstnnding the additional ponsrs and dutiae~herdby~oo~ferrsd upon the Jhdgss of the County Courts atLaw of this State, no additional oompensatiaa or salary a,hall,be .paid to tha+ ,but the oompsnsation or salary of suoh Judges of ths County Court8 at Lam shall ramain the 6amo a5 ROW, or may be heraafter, fined by law provided that this Aot shall not apply to any County having a population of more than thres hundred and fifty thousand (S60,OOO) aooording to the last Federal Census.
aSection 4. All laws and parts of law in oonfliat "'~ with the provisions of this Aot are hereby expressly repealed to the extant suoh oonfliot only.
"Seotion 6. The faot that tha dookets of the various County Courts in this State in counties in which there are County Caurta at Law, am ormdsd to suoh an sxtsnt ao as to oausa delay in the trial of probate, juvenila, and lunaoy oaaast and the faot that the m&hod of appointing or eleoting a speoial Judge to aot for the County Judge, as nom provided by lam, is inoonvanient and expensivs to suah oountias, often oausing delay in the trial of aaaesi and the further faot that there is now no provision in the law authorizing Judges of the County Courbs at Lam of this State to aot for the County Judga in suoh oasas, ornate an emergenay and an fmperative public neoessity that the Constitutional Rule requiring billr to be read on three several days in aaah BDuaa be suspendad, and said Ruls is heraby suspended, and that this Aot shall take *3 Honorable R. A. Weinert, page 3
effect and be in foroe from and after its passage, and
it is so enacted."
Some of the pertinent provisions the Constitution of the State of Texas to be aonsidered in determining the constitutionality of said House Bill No. 465 will be considered and disoussed.
Artiole 5, Section 1, provides:
'Seation 1. The judicial power of this State shall be vested'in one . . . in County Courts. . . and in suoh
other oourts as may be provided by law.
"The Legislature may establish suoh other courts as it may deem neoessary and prescribe the jurisdiotion and
organization thereof, and may oonform the jurisdiotion of the Mstrict and other inferior courts thereto."
Seation 11 of the same Artiole of the Constitution provides: "Seotion 11. No judge shall sit in any ease where- in he may be interested, or where either of the parties
may be oonneoted with him, either by affinity or oonsanguinity, within suoh a degree a8 may be prescribed by law, or when he shall have been oounsel in the 0888. . . . .
II . . . . This disqualifioation of judges of inferior tribunals shall be remedied and vacancies in their offloes filled as may be prescribed by law."
Se&ion 15 of the same Artiale reads: Section 16. There shall be established in eaoh oounty in this State a County Court, which shall be a court of reaord; and there shall be elected in each county, by the qualified voters, a County Judge, who shall be well informed in the law of the State; shall be a conservator of the peaoe, and shall hold his offioo , for two years, and until his suoce8sor shall be
elected and qualified. He shall receive as a oompensa- tion for his services suoh fees and.perquisites as may be presaribed by law."
Section 16 of the same Artiole gives in detail the juris~diction of the county court: that provision in part also provides; j"
"Section 16 . . . . . When the judge of the %unty Court is disqualified inanycase Rending in the County Court the parties interested may, by consent, appoint a proper person to try said ease, or upon their failing to do so a oompetent
i *4 Honorable R. A. Weinert, page 4 inted to try the same in the county
erscn may bs a ih sucfi-mnner IIS may 6 prescribid _~.___.. ,__ Section 22 of the same Act, likewise provides: "Section 22. The Legisleture shall have power, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of County Courts; and in cases of any such change of jurisdiction, the Legislature shall~ also conform the jurisdiction of the other courts to such change."
At present, Articles 1930 to 1934, inalusive, R. C. S., 1925, provide for the selection or appointment of B Special Judge to act for the County Judge where the latter is disqualified or incapacItated ir, the manner therein provided.
The constitutionality of said Prticlo 1934 vms upheld in the cam of Porter VS. State, 4t3 Criminal Reports, 126, 86 S. W. 768. In the same case the fact that no bond is required by the special judge so elected was held to be imaterial to the validity of his appointment.
.Artiols 19'70, Chapter 5 of Title 41, R. C. S., 1925, and 88 amended, provides in detail for the creation and tictim of a County Court et Law. It may be generally stated, without giving a detailed analysis of each section, tha- i the jurisdiction of such ccurts has been limited to original and concurrent jurdsdicticrt with the County Court in all matters and causes both civil and criminal over which the regular County Court would have jurisdictjon except ir probate matters, lunacy matters and juvenile matters.
The Constitution does not mention or create o "County Court at Law. "
Rouse Bill No. 465 appears to be an act to allcw Judges of the County courts at Law, in certain counties, during the absence, inability or disqualification of the regular County Judge to sit in his place and perform his duties during the existence of such abser~ce, inability or disqualification.
Clearly the Legislature under Article 5, Sections 1 and 22 of the Constitution of the State of Texas, has the'pcwer to ores.te County Ccurix at Law and confer upon them the original and concurrent juris- diction, in civil and criminal matters, which the County ?!ourt has, bv terms of the Constitution (Article 5, Section 16). la the case of State vs. Gillette's Estate, (Corn. of App.) 10 S. F. (Zd) 984, Judge Critz said:
"Ve therefore ccnclud~ that se&ion 22 of article 6 of the Constitution of this state, in so far as the probate *5 Honorable R. A. Weinert, page 6
jurisidiotion of the county court is concerned, speaks exolusively as to the right of the Legislature to increase, change, or diminish the jurisdiction of suah courts as
presoribed end defined under section 16 of the sane article, and that said section 22 speaks exclusively as to the right or power of the Legislature to conPorn the jurisdiction of the district or other inferior oourts to suoh change. Section 22 limits the power of the Legislature in this respect to the civil and criminal jurisdioticn of the ccunly courts. It
therefore follows that any effort on the part of the Legis- lature to increase, diminish or change the probate jurisdio- tion of the county court of Eta&land county, or to confer
such probate jurisdiction on any other court, would be void es contrary to the fundamental law of the land." _,,..-
If:&use Bill Aa. 466 purports to confer upon the County Ccurtx et Law, in certain counties, probate jurisdiction, then suoh act is clearly unconstitutional under the holding in the Gillette's Estate cascI
We believe, however, that the purpose of the Bill is to merely provide that the Judges of the County Courts at Law, ix aertain counties, should be able, in the instances specified in the Act, to sit for and act for and in the place of the County Judge. We now oansider the constitutionality of House Bill No. 465 in this manner. 6, Section 18 of the Constitution specifically provides Article
that "when the Judge of the County Court in any case pending in the County Court is disqualified the parties interested may by consent, ap- point a proper person to try said case." We do not find any provision ir House Bill 466 conforming the Act to the above provision of the Constitution. This provision of the Constitution is a special provisior applicable to County Courts and under the ruling in the Gillette's hstate cme, suprs, we do not believe the Legislature has the powcr to deprive litigants of matters pending in the County Court frem being allcwsd to appoint, by ooasent. some propsr person to try aueh muse where tha County Judge is disqualified, IO this extent wa are of the opinion that House Bill NC. 466 is In violation of the fundamental law of the land and is to that extent unconstitutional. As e suggestion, we think the Bill should be changed so as to comply with the above quoted provision of the Constituticm so es not to deprive litigants in the County Court of their constituticnal right to appoint, by consent, e proper person to try their litigation.
If the litigants or parties to the matter, pending in the County Court, are uneble or fail to agree uponthe appointment sane proper person to try their causs where the County Judge is disqualified. in that instance Article 5, Section 16, also provides "or upon their feil- ing to do so e competent person may be appointed to try the same in the county where it is pending in suah manner as may be prescribed by law." We think this provision of the Constitution gives the Legislature the *6 Honorable R, A. Weinert, page 6
power to provide for the appointment or Selection of a oDmpetent person to try a cause, pending in *ha County Court, so long as suah methods do not deprive the parties from being able to appoint, by consent, in case the County Judge is.disqualifisd, Soxne proper person to try said cause, whioh ve have already discussed.
We find no speoifio constitutional limit&tion or prtihibi.tion upon a judge of 8 County Court St Lan,bsing suthorited by the LegiSIS- ture to sern-3, in case of ths absence or inability or in instanaas where the parties interested in R matter fail to appoint, by aonsent, B proper person to try their matter in the place of and for the County Judge so long es suoh conditions exist, UnIesS it @an IXI said that the Judge of the County Court at Law in su~oh instanoss is holding two civil offices of "emol.ument" So that the respective duties entailed by serving in each rsspeotive offioial capacity arS incompatible,
Article 16, Section 40, of the Constitution of the Stats of Texas provides in part as follows:
"No person shall hold or exercise, at the 68~~ time, more than one civil offioe of emolument, o D D *"
We quote from 34 Texas Jurisprudence, pages 349 land 350: "&olument means a pecuniwy profit, gain or advantage: hence the same person may hold two civil offices where no pay, compensation or pecuniary gain attached to one of them, provided they are not incompatibleO."
House Bill No, 465 expressly provides that no additional cornpen- sation shall be paid to such judges of County COUI%S St Law for the additional powers and duties imposed upon them. Clearly, then, the Act does not present a situation where the same person holds two "civil offices of ew,olument" end therefore does not violate Article 16, Seotion 40 of the Constitution. Porter vss State (Grim. App.) 86 S.W. 767; Powell vso Nilson, 16 Tex. 59,
WS quote from the Porter vs. State case, in which the court construed the SFUIIS constitutional provision, as followsr
*It is further insisted.that this being the sole provision authorizing some one to sit as S judge and try the eases in the county court, and that with ref-
erence to distriot courts it being expressly provided,
where .a judge fails from any c8use to attend at the
term, the bar can select a special judge, this con-
sti,tutional. provision re-enforces the idea that it was
not intended to oonfer authority on the bar, avhhere the
judge failed to attend a meeting of the county oOwt, to elect a special judge. WS do not beli.eve this contention
.
Honorable R. A. Weinert, Rage 7 o-3407
is sound. The faat that the Constitution provides for the selection of a special judge in the district court, in the absenae of some prohibitive provision with refarenoe to ooun$y courts, would be no nov~+ion of authority. That 10, before it could be held timt vse Legislature did sot have the power to provide for the election of a speoial judge, them must be found something In the Constitution nith
reference to county courts expressly or by strong implication denying such authority. Ex parts Wilbarger, 41 Tex. Cr. R. 514, 66 S. W.,968; LytIe v. Bnlff, 75 Tex. 126, 12 S. 8; 610.
As stated, the only clause of our Constitution authorizing the selection of a oounty judge is where the county judge is disqualified. It has no reference whatever to holding a tens of the aourt where the oounty judge, frcm any oauee, shall fail to attend. This aontingenoy not being provided for by the Constitution, se hold it was competent for tlie Legislature to author?,re the selection of a special judge by the membsrs of the bar. It is contended in this oon- neotion that the ciounty judge is required to give bond, and no provision is found in the act with reference to a apeoial judge requiring him to give bond. We hold that, as to his qualifioations, referenoe might be had to the general aot on the subject. At any rate, the failure to prescribe a bond would not Invalidate his eleotion."
We believe the holding in the Powell vs. Wilson case is per- tinent, from vhiohr
"The oonstitution (art. vi, sea. 26) dealares that 'No person shall hold or exercise at the same time more than one oisil office of emolument. except that of
justice of the peace. It is olear, therefore, that
two civil offioes of emolument oannot be united in the
same person, unless one of them be that of justice ,oP
the peace, which is speoially excepted. But does it
follow that the same, or at least some of the same
duties may not be attaohed to ixo offiaer, to be ex-
ercised by the inoumbents conourrentlpr or,that the
duties of an office may not be to act as substitute for another? We think not. There are instances in which
the came duty is attached to different offiaes, to be
exercised by the inaumbents concurrently. Thus, to
sweral offices is attaohed the duty of being oonswva-
tars the peaae~ so slso ohief juatioer, judges of
the distriot courts, clerks and notaries public are
authorized to take the aoknowledgnent of deeds. These
are all oivil offioes of emolument, either created or
reoo@ired by the constitution. Yet there am be no
objet&ion to the inownbente having the same duty at-
taohed to their respective offices. It does not eon-
atitute them incumbents of more offices than one, or
-- Honorable R. A. Weinert, page @
subject them to the charge of holding or exercising two
or more offices at the mm time, Other instances might be given, but these will euffice, "Again. it cannot be doubted that it is competent -__ for the Legislature to create ,&!I office which shel~l be .._,.
%t of a substitute or mere auxiliary to enothsr, the " duties of which shall oommenoe and consist in perfoG
ipg the duties of the princi@ office when t&-G= bent of that office is incapacitated to act, In suoh .-,_
a oasep the ,substitute would not be holding and exer-
cising two offices when performing.the,dut.ies of the : principal office. He would be simply sxeroislng his
opm office;,for when oalled into exercise, its dutids
are the duties of his office, . 0 c o . 'm=cor-
ing ours)
The holding in the Pow11 case, supra, was approved in the 'case of Jones ~8, Alexander, (Corn. of App.) 59's. &. (2d~) 1080, We believe House Bill No.. 465, merely seeks to provide for a means of continuing the business of,the County Court, in the manner therein provided, at a swing to the oauntiea'lrithout interruption, if possible, by providing a means of selection of a competent person to aotfor and instead of the County Judge where he is absent, or unable to perform his duties, or is disqualified. We believe the Aot olearly comes within the holding in the Powell ease.
Neither do we believe the duties of the Judge of the County Court and the Judge of the County Court at Lam, under house El1 No. 465, *re incompatible, We quote from 34 Texas Jurisprudence, page 351:
"Offj.ces are inocmpatible where their duties are or may be inconsistent or oonflict, but not where their
duties are wholly unrelated, *re in no manner inconsistent and are never in aonflj~ct, and where neither officer
$8 soaountable or under the dominion of, or subordinate to, the other, or has any right or;power to interfere
with the other in the,performanoe of any duty.'!
Sinoe the compensation for both the jud~ges of the County Court and the judges of the County Courtat Law are to be compensated, by law, by the respeotive aountiea which they serve, we do not believe the provisions Artiole 16, Se&ion 33, are violated in considering the constitutionality of House Bill No. 465,
Artiolo 3, Section 56, of the Constitution provides in part BS follows:
"The Legislature shall not, except hs otherwise pro- vided in this Constitution, paria any local or special law, authorizing?
FIonorable R. A. Weinert, pege 9
"Wgulating the affairs of counties, cities, toPms, wards or school distri~cts: creating offices, or pre-
scribing the powers end duties of offioers, in oounties, cities, towns, election or school districts;
"Regulating the praotice or jurisdiction of or changing the rules of evidence in any judicial pro-
ceeding or inquiry before courts, .justioes of the
peace * . . .
"And in all other ceses where a general law can be made applioeble no local or speoial le.8 shell beenacted I, . . . . . . . . . .
House Bill No. 466 applies to counties of less then three hurl- dred and fifty thousand (350, 000) inhabitants eooording to the last; Federal Census. A consideration of Article 1970, R. C. S., 1925, and es amended, shows that I:ounty Courts at Law have been created for se~t:~;:? different oounties of Texas. Acoording to the lest Fedaim Census.
Ilalles and Rerris counties appear to be the only counties having over 350,000 inhabitents. he have been unable to find a Texas case passing upon this kind of population olassification. It is rather difficult for us to find a reasonable basis for exoepting from the provisions of Eouse Xl1 No. 465, counties having over 360,000 inhabitants. Perhaps the large counties we not confronted with the cams problems as counties with the lesser population insofar as the disposition of litigation in the County Court is concerned. Nor, perhaps are they i'sced with the same problems of economy. However, RB believe there WI.
doubtedlg could be some logical basis for suah classification. On this ;wint we quote from hood vs. Marfa Independent School District (Xv. "pp.> 123 ::. a. (Zd) 429:
"We recognize the principle that if the question of the reasonableness of the classification were debatable, the judgment of the Legislature would be final, but we
may not 01ose our eyes to what is clear to all men."
lhere is some doubt in OUT minds about House Bill No. 465 being constitutional, with regard to its classification being in eontraven- t',on of ~Artiole 3, Section 56, of the Constitution. We em enclosing a copy of our opinion No. O-3247 which discusses in detail the oases on
bracket lews" end disoussing what e reasonable classificetion is under the law. We belj.eve the authorities therein cited will be helpful in passing upon this question.
Su!:jeot to the limitations heretofore discussed, it is our opi.ri;ion RII(! you are so advised, that House Bill No. 465, es passed by the Rouse, Forty-seventh Legislature, is e oonstitutionel act.
Honorable R., A. Weinert, page 10
We trust that we have fully anslrered your inquiry. Harold Mctiecken Assistant HM:ej nvc
Encl.
APPROVED MAY 2, 1949
s/Grover Sellers
FIRST A,SSii:TANT
ATTORI&Y GENERAL
This Opinion Consider And Approved In Limited Conference