Untitled Texas Attorney General Opinion

KEN PAXTON

ATTORNEY GENERAL OF TEXAS

March 17, 2016

The Honorable Harold V. Dutton, Jr. Opinion No. KP-0071

Chair, Committee on Juvenile Justice

and Family Issues Re: Constitutionality of Senate Bill 1876,

Texas House of Representatives relating to the appointment of attorneys

Post Office Box 2910 ad litem, guardians ad litem, mediators, and

Austin, Texas 78768-2910 guardians (RQ-0060-KP)

Dear Representative Dutton:

On behalf of Honorable Rory Olsen, Judge of Probate Court No. 3 in Harris County, you

ask whether Senate Bill 1876 (the "Bill") from the Eighty-fourth Legislative Session is

unconstitutional. 1 The Bill amended the law regarding the court appointment of attorneys ad litem,

guardians ad litem, mediators, and guardians. 2 Pursuant to the Bill, subsection 37.004(a) of the

Government Code now requires, "in each case in which the appointment of an attorney ad litem,

guardian ad litem, or guardian is necessary," that a court using a rotation system "appoint the

person whose name appears first on the applicable list maintained by the court as required by

Section 37.003."3 TEX. Gov'T CODE § 37.004(a); see also id. § 37.003 (requiring a court to

establish and maintain lists). . Only a narrow set of appointments are exempt from this

requirement. 4 In addition, a court may appoint a person on the applicable list whose name does

not appear first, or a person qualified to serve but whose name is not on the list, in two instances:

'See Letter from Honorable Harold V. Dutton, Chair, House Comm. on Juv. Justice & Fam. Issues, to

Honorable Ken Paxton, Tex. Att'y, Gen. at 1 (Sept. 21, 2015), https://www.texasattorneygeneral.gov/

op inion/requests-for-opini on-rq s ("Request Letter").

2 Priorlaw required local administrative judges to maintain a list of those qualified to serve as attorneys

ad litem. When such an appointment was required, the court had to appoint the attorney whose name appeared first

on the list. However, appointments made under the Family Code, Health and Safety Code, Human Resources Code,

Texas Trust Code (Subtitle B, Title 9, Prop'erty Code), and the former Texas Probate Code were exempt from this

requirement. The Bill repealed this broad exemption.

3

Subsection 37.004(b) similarly requires a court to appoint the first person on the mediator list when the

appointment of a mediator is necessary. TEX. Gov'T C?DE § 37.004(b).

4See id § 37.002 (exempting appointments only under specific provisions of the Civil Practice and Remedies

Code, the Family Code, and the Estates Code).

The Honorable Harold V. Dutton, Jr. - Page 2 (KP-0071)

The first is "if the appointment of that person as attorney ad litem, guardian ad litem, or guardian

is agreed on by the parties and approved by the court." Id. § 37.004(c). The second instance is

when required on a complex matter if the court finds good cause because of a person's special

expertise, prior involvement with the parties or the case, or geographic location. Id. § 37.004(d). 5

You assert that the Bill "deprives judges of discretion in the appointment process." Request Letter

at I.

Your first concern is whether the Bill violates article II, section 1 of the Texas Constitution.

Id at 1. This provision divides the powers of state government into the legislative, executive, and

judicial branches, none of which "shall exercise any power properly attached" to either of the other

branches, except as permitted by the constitution. TEX. CONST. art. II, § 1. The Court of Criminal

Appeals has held that this provision may be violated either "when one branch of government

assumes, or is delegated, to whatever degree, a power that is more 'properly attached' to another

branch" or when "one branch unduly interferes with another branch so that the other branch cannot

effectively exercise its constitutionally assigned powers." Safety Nat'! Cas. Corp. v. State, 273

S.W.3d 157, 162 (Tex. Crim. App. 2008).

In analyzing the constitutionality of the statute, we begin "with a presumption of validity."

In re Commitment of Fisher, 164 S.W.3d 637, 645 (Tex. 2005). The judicial power of the state is

vested in the courts. TEX. CONST. art. V, § I. This judicial power encompasses certain "core"

functions, namely, the power to (1) hear evidence; (2) decide the issues of fact raised by the

pleadings; (3) decide the relevant questions oflaw; (4) enter a final judgment on the facts and the

law; and (5) execute the final judgment or sentence. Safety Nat'! Cas. Corp., 273 S.W.3d at 159,

162. At the same time, the constitution provides that rules of administration in the various courts

must be "not inconsistent with the laws of the state as may be necessary for the efficient and

uniform administration of justice." TEX. CONST. art. V, § 31(a). The Court of Criminal Appeals

has explained that "this express grant exempts legislative enactments regarding judicial

administration from the proscriptions" of the separation of powers clause. State v. Williams, 938

S.W.2d 456, 459 (Tex. Crim. App. 1997); see also Armadillo Bail Bonds v. State, 802 S.W.2d 237,

240 (Tex. Crim. App. 1990) (acknowledging the Legislature's "ultimate authority over judicial

administration"). But although the Legislature has authority over judicial administration, the

Legislature may not "infringe upon the substantive power" of the judiciary "under the guise of

establishing 'rules of court."' Armadillo Bail Bonds, 802 S. W.2d at 240 (quoting Meshell v. State,

739 S.W.2d 246, 255 (Tex. Crim. App. 1987)). Thus, the dispositive inquiry is whether judicial

appointments of attorneys ad litem, guardians ad litem, mediators, and guardians constitute an

exercise of a substantive, core judicial power and, if so, whether section 37.004 of the Government

Code infringes on that power.

Briefing received by this office claims that these appointments constitute a "zone ofjudicial

power" that may not be infringed upon because, in criminal cases, judges are entitled to judicial

immunity for the act of including attorneys on a rotation list and for appointing counsel on

5 Subsection 37.004(d) is also applicable to the appointment ofa mediator. Id § 37.004(d).

The Honorable Harold V. Dutton, Jr. - Page 3 (KP-0071)

particular cases. 6 See Davis v. Tarrant Cty., 565 F.3d 214, 225-26 (Sth Cir. 2009). However,

defining a judicial act for purposes of immunity is not the same as identifying substantive core

judicial powers under the constitution. 7 We find no other case law, nor do you bring any to our

attention, that suggests that making court appointments of attorneys ad litem, guardians ad litem,

mediators, and guardians is an exercise of a core judicial power. See Peraza v. State, 467 S.W.3d

508, 514 (Tex. Crim. App. 2015) (noting that "[t]he burden rests upon the individual who

challenges a statute to establish its unconstitutionality"). We note that the Bill amended section

74.092(11) of the Government Code to authorize a local administrative judge to "establish and

maintain" the appointment lists required by section 37.003 if requested by a court he or she serves,

adding to the list of administrative functions performed by the local administrative judge. TEX.

Gov'T CODE§ 74.092(11). That these functions can be delegated in such a manner suggests that

they are more properly characterized as administrative functions "necessary for the efficient and

uniform administration of justice" and not core judicial functions. TEX. CONST. art. V, § 3 l(a);

see also SEN. COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. S.B. 1876, 84th Leg., R.S. (2015)

at 1 (stating that the prior broad rotation list exemptions resulted in abuse or the appearance of

abuse of the appointment system and that the Bill "would ensure a more fair, efficient, and

equitable system for the appointment of attorneys and guardians ad litem, guardians, and

mediators"). Thus, a court is unlikely to conclude that making court appointments of attorneys ad

litem, guardians ad litem, mediators, and guardians is a core judicial power or that section 37.004

of the Government Code violates article II, section 1 of the Texas Constitution.

You also ask whether the Bill "is unconstitutionally vague." Request Letter at 1. As

previously mentioned, prior law required local administrative judges to maintain a list of those

qualified to serve as attorneys ad litem. The Bill added certain other positions to the group of

perSOfl:S whose names a court must maintain on lists for appointment. See generally TEX. Gov'T

CODE§ 37.003. In addition, in adopting local rules of administration, district and statutory county

court judges may adopt rules for the establishment of the lists required by section 37.003 that

"provide for ... the person's qualifications." Id. § 74.093(c-l). You maintain that the Bill is

unconstitutionally vague because it "fails to define what attributes are necessary to be considered

'qualified"' for inclusion on the various lists. Request Letter at 1, 4.

You draw our attention to Proctor v. Andrews, in which the Texas Supreme Court reviewed

a delegation of legislative power whereby a private entity and a federal agency would provide the

names of qualified, neutral arbitrators who could serve as hearing examiners. Proctor v. Andrews,

972 S. W.2d 729 (Tex. 1998). At issue was whether the terms "qualified" and "neutral" in the

delegating statute provided sufficient standards to guide the entities in selecting potential hearing

examiners. See id. at 734. The court's analysis centered on the application of an eight-factor test

used to determine whether a private entity has been impermissibly granted legislative power. See

6

See Letter from Honorable Carl Ginsberg, 193d Jud. Dist. Ct. (Nov. 4, 2015) and attached I 93d Dist. Ct.

Standing Order 000017, In re: Appointment of Att'ys & Guardians Ad Litem and Mediators - TEX. Gov'T CODE ch.

37 (Aug. 31, 2015) at 3 (on file with the Op. Comm.).

7

1n any event, the Court in Davis acknowledged that "judges have very limited discretion in deciding which

attorney to appoint in a specific case" because "they may only deviate from the rotation system for good cause."

Davis, 565 F.3d at 226.

The Honorable Harold V. Dutton, Jr. - Page 4 (KP-0071)

id. at 735. The judiciary is not a private entity, and thus the specific analysis is likely not applicable

to the situation posed here. See id. (noting that legislative delegations to private entities are

"subject to more searching scrutiny than delegations to their public counterparts"). However, the

court stated that the policy and standards declared in a statute "may be broad or general, so long

as the idea embodied is reasonably clear and the standards are capable of reasonable application."

Id. at 738. The court observed that the term "qualified" had a commonly understood meaning

referring to someone "competent to understand the issues and render decisions," which provided

the entities with sufficient guidance in selecting arbitrators. Id. at 73 7. If the term "qualified" can

be reasonably applied by a private entity delegated legislative power without running afoul of the

constitution, we are not persuaded that the term cannot also be reasonably applied by the judiciary.

Thus, a court is unlikely to conclude that the Bill is unconstitutionally vague.

The Honorable Harold V. Dutton, Jr. - Page 5 (KP-0071)

SUMMARY

A court is unlikely to conclude that Senate Bill 1876 from

the Eighty-fourth Legislature is unconstitutional under article II,

section 1 of the Texas Constitution or is unconstitutionally vague.

Very truly yours,

~?~KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

BRANTLEY STARR

Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER

Chair, Opinion Committee

BECKY P. CASARES

Assistant Attorney General, Opinion Committee