The opinion
3, 1966
Honorable Joe Resweber Opinion X0. C-r*
County Attorney
Harris County Re: Appointment of retired
Harris County Courthouse judges of appellate
Houston, Texas 77002 courts to active duty
on Courts of Civil
Dear Mr. Resweber: Appeals.
By letter to this office dated May 27, 1966, you
have requested an opinion In regard to the above matter. We
quote from your letter as follows:
1,
. . .
"Due to the recent constitutional amend-
ment Judge Werlein will be required to retire in the
latter part of 1967, thus creating a .vacancyto be
filled by Governor Connally. As you no doubt know,,
the Court of Civil Appeals for the First Supreme
Judicial District continually has a serious overload
of cases which must be transferred out on equali-
zation, a practice not enjoyed by the vast majority
of the lawyers in the district. . . .I
"'The question that we,propound is based
upon the assumption that Chief Justice Robert W.
Calvert would assign him to service with the Court.
The Houston Bar Association would like to obtain an
opinion as to ~whether or not, If assigned by Judge
Calvert, Judge Werlein can continue to serve so long
as his assignment Is effective as a "fourth member"
of the Court in the sense that he can participate In
decisions and cast his vote and prepare written opinions
for the court. It is assumed, of course, that the
presiding Chief Justice would sit in all cases sub-
mitted, but the Associate Justice would rotate so that
there would be no more than three members of the
court as to any particular cause.'
-3537-
, .
Hon. Joe Resweber, page 2 (c-734)
Article V, Section 6, of the Texas Constitution pro-
vides for the establishment of Courts of Civil Appeals and con-
tains, in part, the following:
11
. . . and shall establish a Court of Civil
Appeals in each of said districts, which shall
consist of a Chief Justice and two Associate
Justices, . . .
I,
. . . Said Justices shall be elected by
the qualified voters of their respective districts
at a genera; election, for a La7 term of six
years . . .
Article IV, Section 12, of the Texas Constitution pro-
vides:
"All vacancies in State or district offices,
except members of the Legislature, shall be filled
unless otherwise provided by law, by appointment
of the Governor, which appointment, if made during
its session, shall be with the advice and consent
of two-thirds of the Senate present. If made during
the recess of the Senate, the said appointee, or some
other person to fill such vacancy, shall be nomi-
nated to the Senate during the first ten days of
its session. If rejected, said office shall immediately
become vacant, and the Governor shall, without delay,
make further nominations, until a confirmation
takes place; But should there by no confirmation
during the session of the Senate, the Governor shall
not thereafter appoint any person to fill such
vacancy who has been rejected by the Senate; but
may appoint some other person to fill the vacancy
until the next session of the Senate or until the
regular election to said office, should it soonor
occur. Appointments to vacancies in offices
elective by the people shall only continue until
the first general election thereafter."
Article V, Section 11, of the Texas Constitution pro-
vides in part:
"No judge shall sit in any case wherein he
may be interested, or where either of the parties
may be connected with him, either by affinity or
consanguinity, within such a degree as may be pre-
scribed by law, or when he shall have been counsel
in the case. When the Supreme Court, the Court
of Criminal Appeals, the Court of Civil Appeals,
or any member of either, shall be thus disqualified
to hear and determine any case or cases in said
-3538-
r
Hon. Joe Resweber, page 3 (C-734)
court, the same shall be certified to the Governor
of the State, who shall immediately commission the
requisite number of persons learned in the law for
the trial and tetermination of such cause or
causes. . . .,
Article V, Section l-a; of the Texas Constitution,
adopted at a date subsequent to the dates of adoption of the
above quoted portions of the Constitution, provides, in part,
that:
"(1) Subject to the further provisions of
this Section, the Legislature shall provide for
the retirement and compensation of Justices and
Judges of the Appellate Courts and District and
Criminal District Courts on account of length of
service, age and disability, and for their reassign-
ment to active duty where and when needed. . . .'I
(Emphasis added.)
Section 7 of Article 6228b, Vernon's Civil Statutes,
provides as follows:
"Judges retired under the provisions of this
Act shall be judicial officers of the State, and
during the time they are receiving retirement pay
shall not be allowed to appear and plead as attorneys
at law in any Court of record in this State, and
shall with their own consent, be subject to axgn-
ment by,the Chief Justice or the Supreme Court to
sit inany Courtof this State of the same dignity,
or lesser, as that from which they retired, and if
‘in a District Court, under the same rules as pro-
vided by the present Administrative Judicial Act,
and while so assigned, shall have all the powers
of Judges thereof. While assigned to said Court
such Judges shall be paid an amount equal to the
salary of Judges of said Court, in lieu of retire-
ment allowance." (Emphasis added.)
QUESTIONS PRESENTED
For convenience, the discussion of the referenced
subject may be divided into three questions:
1. To ,what extent, if any, does Article V,
Section l-a, of the Constitution modify those
portions of the Constitution quoted above which
provide that each of the various Courts of Civil
Appeals "shall consist of a Chief Justice and two
Associate Justices"; that "said Justices shall be
-3539-
Hon. Joe Resweber, page 4 (C-734)
elected by the qualified voters of their respective
districts at a general election for a term of six
years'; that grant the Governor the power to fill
vacancies by appointment; and that grant the
Governor the power to make temporary appointments in
certain cases of disqualification?
2. What is the extent of the legislative
power to "provide for the retirement , . . of
Justices and Judges of the appellate courts . . .
and for their reassignment to active duty where
and when needed" as granted by Article V, Section
l-a of the Constitution?
3. Under what circumstances may the Chief
Justice of the Texas Supreme Court, pursuant to
Article 6228b, Section 7, Vernon's Civil Statutes,
assign retired judges of appellate courts to active
duty on Courts of Civil Appeals?
DISCUSSION AND AUTHORITIES
1. To what extent, if any, does Article V, Section
l-a, of the Constitution modify those portions of the Conetitu-
tion quoted above which provide that each of the various
Courts of Civil Appeals 'shall consist of a Chief Jlustice
and two Associate Justices"; that "said Justices shall be
elected by the qualified voters of their respective districts
at a general election for a term of six ~srsl';that grant
the Governor the power to fill vacancies oy appointment; and
that grant the Governor the power to make temporary appoint-
ments in certain cases of disqualification?
The Texas Courts have adopted certain well-recognized
rules of constitutional construction which are applicable to
the solution of this question:
(1. . .
"When one of several equally reasonable con-
structions will give rise to fewer or less complex
questions in its application, that construction
will be adopted. So too, where one of two equally
reasonable constructions will more certainly or to
a greater degree effect the purpose of the provision,
it will be adopted." 12 Tex.Jur.2d 368, Constitutional
Law, Sec. 22 (and cases cited).
11
. . .
"In adopting a particular construction it is
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.
Hon. Joe Resweber, page 5 (c-734)
proper to inquire if the consequences of following
that Eonstruction were those intended by the people,
12 Tex.Jur.2d 369, Constitutional Law, Sec.
23'(and cases cited).
"All provisions of the constitution in relation
to the same subject matter must be construed together.
State constitutions are adopted as a whole, end a
clause that, standing by itself, might seem of
doubtful import may yet be made plain by comparison
with other clauses or portions of the same instru-
ment; therefore it is a proper rule of construction
that the whole is to be examined with a view to
arriving at the true intent of each part." 12 Tex.
Jur.2d 371, Constitutional Law, Sec. 27 (and cases
cited).
iise,sentence, or word from being superfluous,
void, or insignificant will be employed.
"If there is an irreconcilable conflict between
two provisions, on the principle that the jatter in
position is the later expression of the will of
the people, the latter will be given effect. --
And
should there be a conflict between a general and a
special provision of the constitution, the special.
provision will prevail. When one section of the
constitution expresses a general Intention to do a
particular thing, and another section expresses a
particular Intention incompatible with the general
intention, the particular intention is to be con-
sidered in the nature of an exce tion.
. . . ' 12 Tex.JuMd--Aitutional
37 , Law,
Sec. 28 (and cases citecij.-(Emphasis added.)
"In construing a constitutional amendment, the
court will look both to the evil sought to be cured
and to the remedy sought to be applied. A constitu-
tional amendment becomes as much a part of the organic
law as if it bad been originally incorporated in the
constitution. And a constitutional amendment, being
the last expression of the will of the people, will
supersede any conflicting constitutional provision.
If the later amendment deals with a subject in its
-3541-
Hon. Joe Resweber, page 6 (c-734)
entirety it effects a repeal of all former consti-
tutional provisions dealing with the same subject.
But if there is no inconsistency the courts have
the duty to construe the amendment,and preceding
provisions so as to give effect to all. The con-
tiro e ma ers and
adopteri." 12 Tex.Jur.2d 373, Constitutional Law,
Sec. 29 (and cases cited). (Emphasis added.)
That portion of Article V, Section l-a, of the
Constitution which is pertinent to this question is couched
'in general terms and does not seek to deal specifically with
those'ar,eascovered by the other constitutional provisions
quoted herein; If the rules of constitutional construction
quoted above are applied to this question the result must
be that Article V, Section l-a, in no way authorizes an in-
crease in the membership of the various Courts of Civil
Appeals, nor does it change or affect the power of the
Governor to fill vacancies on such courts by appointment
and to make temporary assignments in cases of disqualifica-
tion. If Article V, Section l-a, were construed so as to
allow assignments of retired judges to active duty on a
Court of Civil Appeals even though all of the regular judges
of such court were actively serving, the practical effect
would be to increase the membership of the court and to at
least partially nullify the requirement that the judges of
such courts shall be elected by the qualified voters of the
particular district.
2. What is the extent of the legislative power to
"provide for the retirement . . . of Justices and Judges of
the appellate courts . . . and for their reassignment to
active duty where and when needed" as granted by Article V,
Section l-a of the Constitution?
Adopting the construction discussed above, Article
V, Section l-a, gives the Legislature the power to provide
for the reassignment to active duty on Courts of Civil Appeals
of retired judges of appellate courts in all cases except in
those specific instances otherwise provided for by the Consti-
tution and provided that no more than three judges may be
actively serving at any one time on any Court of Civil Appeais.
mcle V, Section l-a, in no way,purports to limit the author-
ity of the regular judges of the.Courte of Civil Appeals nor
to grant the 'Legislature~power tomso limit their authority
or terms of offices; therefore, the legislative authority to
make provision for the assignment of retired judges of
appellate courts to active duty,on Courts of Civil Appeals
Is limited in that the tenure and authority of such regular
judges, while they are on active duty, rpy not be curtailed.
The area in which the Leg_#&~ure has power to provide for
.
Hon. Joe Resweber, page 7 (C-734)
the appointment of retired appellate judges to active duty
on Courts of Civil Appeals is thus limited to those situations
wherein a particular Court of Civil Appeals lacks a full
complement of three judges by reason of a vacancy or due to
the disqualification, absence or inability to serve of a
regular member of such Court of Civil Appeals; such assign-
ment power being limited insofar as it may conflict with
the constitutional provisions quoted above which provide
for particular situations and being further limited as to
duration in that such exercise of the assignment power could
not result in curtailing the authority or tenure of any
regular judge of a Court of Civil Appeals who is actively
serving.
3. Under what circumstances may the Chief Justice
of the Texas Supreme Court, pursuant to Article 6228b,
Section 7, Vernon's Civil Statutes, assign retired judges
of appellate courts to active duty on Courts of Civil Appeals?
Several statutes in addition to Article 6228b,
Section 7, are concerned with making temporary assignments
of replacements for judges of the Courts of Civil Appeals
who are disqualified or unable to serve. These statutes
deal with specific circumstances whereas the subsequently
adopted Article 6228b, Section 7, gives the Chief Justice
of the Supreme Court general assignment power. The govern-
ing rules of statutory construction are as follows:
"Broadly speaking, a statute will be construed
with reference to the entire body of law existing at
the time of its enactment, insofar as this may be
necessary to ascertain or effectuate the legislative
intent. Thus, a statute will be construed in the
light of the constitution, the common law, interna-
tional law, and existing statutory law. More
particularly, a statute will be construed with
reference to the general system of legislation of
which it forms a part. . . .
"A statute will be construed so that it will
harmonize with other existing law, unless its
rovisions clearly manifest a contrary intention.
bus, where the literal language of one act con-
flicts with that of another, they should be read
together and harmonized, if reasonably possible,
so as to ive effect to each of them.
Jur.2d 278 , Statutes, Sec. 185 (and casez3c%d).
(Emphasis added.)
"It is a settled rule of statutory interpreta-
tion that statutes that deal with the same general
subject, have the same general purpose, or relate
-3543-
.
Hon. Joe Resweber, page 8 (C-734)
to the same person or thing or class of persons
construction is to carry out-the full legislative
intent, by giving effect to all laws and provisions
bearing on the same subject. The rule proceeds
on the supposition that several statutes relating
to one subject are governed by one spirit and
policy, and are intended to be consistent and
harmonious in their several Darts and vrovisions.
Thus, it applies where one statute deais with a
subject in comprehensive terms and another deals
with a portion of the same subject In a more
definite way. But where a general statute and a
more detailed enactment are in conflict, the latter
will prevail, regardless of whether it was passed
prior or subsequently to the general statute,
unless it appears that the legislature intended
to make the general act controlling. . . .I. 53
Tex.Jur.2d 280, Statutes, Sec. lob (and cases cited).
(Emphasis added.) -
The assignmentpower of the Chief Justice is
therefore coextensive with the assignment power granted by
the Constitution to the Legislature as previously discussed
except that it does not encompass those areas for which
specific provision has otherwise been made by statute.
These specific statutes are set out in Appendix A.
Certain other statutes which indirectly bear on
the question herein presented but which it is felt do not
influence the resolution of these questions are included
for reference in Appendix B.
SUMMARY
The Chief Justice of the Supreme Court of
Texas may assign retired appellate court judges
to active duty on any Court of Civil Appeals
-3544-
Hon. Joe Resweber, page 9 (C-734)
only in those cases where the~particular Court
of Civil Appeals lacks a full complement of
three judges by reason of a vacancy or due to
the disqualification, absence or inability to
serve of a regular member of such Court of Civil
Appeals. Such assignment power is limited in
the first instance and as to duration insofar
as its exercise might conflict with Article IV,
Section 12, Article V, Section 6 and Article V,
Section 11 of the Texas Constitution and Articles
1813 and 1815 of Vernon's Civil Statutes; and
such assignment power is further limited as to
duration in that any such assignment would be
automatically terminated by the return to active
duty of the regular judge whose disqualification,
absence or inability to serve occassioned the
assignment.
Yours very truly,
WAGGONER CARR
Attorney General
BY:
iYiizTz-*
Assistant
LEBjr:ra:dh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
J. C. Davis
John Reeves
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
-3545-
Hon. Joe Resweber, page 10 (C-734)
APPENDIX A
Article 1813, Vernon's Civil Statutes:
"(a) The Justices of each Court of Civil
Appeals shall be elected at the general election
by the qualified voters of their respective dis-
tricts. Upon their qualification, after the first
election after the creation of any Court of Civil
Appeals, the Justices shall draw lots for the terms
of office; those drawing number one (1) shall hold
for the term of two (2) years; those drawing number
two (2) shall hold for a term of four (4) years;
and those drawing number three (3) shall hold office
for six (6) years. Each of said offices shall be
filled by election at the next general election
before the respective terms expire; and the person
elected shall thereafter hold his office for six
(6) years.
"(b) After any Justice of any Court of Civil
Appeals has become totally disabled to discharge
any of the duties of his office, by reason of ill-
ness, physical or mental, and has remained in such
condition continuously for a period of not less
than one (1) year, and if it is probable that such
illness will be permanent, and is of such a nature
that it will probably continue to incapacitate
such Justice for the balance of his term of office,
it shall be the duty of the other two Justices of
the Court of which such incapacitated Justice is a
member to certify such facts to the Governor. Upon
receipt of such certificate by the Governor, he
shall make proper investigation touching the matters
therein contained and if he shall determine that
the facts contained in such certificate are true,
and that a necessity exists therefor, he shall
forthwith appoint a Special Commissioner having the
requisite qualifications of a member of such Court
to assist the same. Such Special Commissioner,
when so appointed, may sit with such Court, hear
arguments on submitted cases, and write opinions
thereon if directed to do so by the Court; and
said opinions, if adopted by the Court, shall be-
come thereupon the opinions of the Court.
"(c) The Commissioner herein provided for,
when appointed by the Governor, shall receive the
same compensation as the regular Justices of the
Court of Civil Appeals, and he shall serve until
the death or expiration of the term of the disabled
-3546-
.
Hon. Joe Resweber, page 11 (C-734)
member; provided that in no event shall the term
of service continue for a longer time than two
(2) years under the same appointment; and provided
further, that in the event the disabled Justice
shall recover from his.disability, the term of such
Special Commissioner shall immediately end. In the
event of such recovery two (2) Justices of said
Court shall certify such fact to the Governor, and
such certificate shall be conclusive evidence of
the recovery of said disabled Justice.
"(d) Whenever any Justice of any Court of
Civil Appeals is called or ordered into the active
military service of the United States, it shall be
the duty of the other two Justices of the Court of
which such Justice is a member, to certify that
fact to the Governor.. Upon receipt of such certif-
icate by the Governor, he shall make proper investi-
gation touching the matters therein contained, and
if he shall determine that the facts contained in
such certificate are true, and that a necessity
exists therefor, he shall forthwith appoint a
Special Commissioner having the requisite qualifica-
tions of a member of such Court to assist the same.
Such Special Commissioner, when so appointed, may
sit with such Court, hear arguments on submitted
cases> and write opinions thereon if directed to do
so by the Court; and said Opinions, if adopted by
the Court, shall become thereupon the opinions of
the Court.
"(e) Such Special Commissioner, when so appolnt-
ed by the Governor, shall receive the same compensa-
tion as the regular Justices of the Court of Civil
Appeals, and shall serve until the Justice who has
been so called or ordered into the active military
service of the United States is discharged from
such military service, or until the expiration of
the term of office of such Justice; provided that
in no event shall the term of service of such Special
Commissioner continue for a longer period than two
(2) years under the same appointment; and provided
further that when such Justice so called or ordered
into the active military service of the United
States is discharged from such active military serv-
ice, the term of such Special Commissioner shall
immediately end. When the active military service
of such Justice shall have terminated, the other
two Justices of such Court of Civil Appeals shall
certify that fact to the Governor, and their certif-
icate shall be conclusive evidence of the facts SO
-3547-
. . .
Hon. Joe Resweber, page 12 (c-734)
certified.
"(f) Nothing In this Act shall be considered
as giving any two (2) members of any Court of Civil
Appeals, or the Governor, the power or authority
to remove or suspend any member of the Court of
Civil Appeals from office, or to in any manner
interfere with him in his Constitutional rights
and powers." Acts 1st C.S., 1892, p. 25; G.L. vol.
lo, p. 389; Acts, 1936,,44th Leg., 3rd C.S. p. 2108,
ch. 509, 0 1. Acts 1937, 45th Leg., p. 297, ch. 154,
R 1; Acts 1941, 47th Leg., p.170, ch. 123, U 1.
Article 1815, Vernon's Civil Statutes:
"If all or any two members of any Court of Civil
Appeals shall be disqualified to determine any cause
in such court, th,atfact shall be certified to the
Governor, who shall immediately commission the requi-
site number of persons, learned in the law, to try
and determine said cause." Id.
-3548-
Hon. Joe Resweber, page 13 (c-734)
APPENDIX B
Article 1812, Vernon's Civil Statutes:
"Each Court of Civil Appeals shall consist of
a Chief Justice WIG two Associate Justices. A majority
shall be a quorum for the transaction of business,
and the concurrence of two Justices shall be necessary
to a decision." Acts 1st C.S. 1892, p. 25; G.L, vol.
10, P. 389.
Article 1814, Vernon's Civil Statutes:
"No person shall be eligible to the office of
Justice of a Court of Civil Appeals, unless he be at
the,time of his election thirty years of age or over,
a resident of the district from which he is elected,
and has been a practicing lawyer or a judge of a court
of this State, or such lawyer and judge together, at
least seven years." Acts 1stC.S. 1892, p. 25; G.L.
vol. lo, p. 389.
Article 1816, Vernon's Civil Statutes:
"The term of each Court of Civil Appeals of the State
of Texas shall begin on the first Monday in October
of each year and shall continue in session until the
first Monday in October the next succeeding year; pro-
vided that the Justices of each of said Co'urtsshall be
permitted to take a vacation of eight weeks during each
year at such time as the Court may fix, during which
period the Court shall not be adjourned but shall be
in'recess and may be called together by the Chief
Justice or by'the two Associate Justices in case business
requiring immediate disposal should arise.' Acts 1897,
p. 132; G.L. Vol. lo, p. 1186; Acts 1927, 40th Leg.,
p. 120, ch. 79, & 1; Acts 1927, 40th Leg., 1st C.S.,
P. 147, ch. 50, I 1.
Article 1819, Vernon's Civil Statutes:
"The appellate jurisdiction of the Courts of Civil
Appeals shall extend to all civil caseswithin the limits
of their respective districts of which the District
Courts and County Courts have or assume jurisdiction
with the amountin controversy or the jud ment ren-
dered shall exceed One Hundred Dollars ($ 100) exciusive
of interest and costs; provided, however, that if any
Court of Civil Appeals having jurisdiction of a cause,
matter or controversy requiring immediate action shall,
by reason of the illness or absence or unavailability
-3549-
. . .
Hon. Joe Resweber, page 14 (c-734)
of at least two (2) of the Judges thereof, be unable to
take such immediate action, then the nearest available
Court of Civil Appeals may take such action as may
be required in regard to said cause, matter or contro-
versy under such rules as the Supreme Court ma prescribe."
As amended Acts 1957, 55th Leg., p. 1279, ch. % 26,
% 1.
Article 1.738, Vernon's Civil Statutes:
"The Supreme Court shall, as early as practicable
after the 1st day of January and the 1st day of June
of each year, equalize, as nearly as practicable, the
amount of business upon the dockets of the several
Courts of Civil Appeals as of the close of business on
the 31st day of December and the 31st day of May of
each year by directing the transfer of cases from such
of said Courts as may have the greater amount of business
upon their dockets to those having a less amount of
business. Said Court may, at any other time, order
cases transferred from one Court of Civil Appeals to
another, when, in the opinion of the Supreme Court, there
is good cause for such transfer. And the Courts of
Civil Appeals to which such cases shall be transferred
shall have jurisdiction over all such cases so trans-
ferred, without regard to the District in which the
cases were originally tried and returnable upon appeal.
Provided thatthe Justices of the Court to which such
cases are transferred shall, after due notice to the
parties or their counsel, hear oral argument on such
cases at the place from which the cases have been ori-
ginally transferred. Provided further, that there shall
be but one sitting for oral argument at the place from
which cases are transferred for each equalization, and
all cases so transferred at any one equalization must
be orally argued at such sitting, or at the regular
place of sitting of the Court to which said cases are
transferred. All opinions, orders and decisions in such
transferred cases shall be delivered, entered and ren-
dered at the place where the Conrt to which such cases
are transferred regularly sits ab the law provides.
The actual and necessary traveling and living expenses
of the Justices of said Courts in hearing oral argu-
ment at the place from which such cases are transferred
shall be borne by the State, and for payment thereof
the Legislature shall make appropriation." Acts 1895,
79; G.L. vol. 10, p. 809; Acts 1909, p. 88; Acts 1927,
0th Leg-.,p. 115, ch. 76, B 1; Acts 1927, 40th Leg.,
E'
1st a,,:s.,p. 148, ch. 51, 8 1. Acts 1933, 43rd Leg.,
p. 380, ch. 151, fi1; Acts 1941, 47th Leg., p. 762,
ch. 476, 0 1.
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