The opinion
_.
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 itiany 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.,Lavahall 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.paidto tha+ ,butthe
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 of 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
Honorable R. A. Weinert, page 3 O-3407
effect and be in foroe from and after its passage, and
it is so enacted."
Some of the pertinent provisions of 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
Honorable R. A. Weinert, page 4 O-3407
erscn may bs a inted to try the same in the county
ih sucfi-mnner IISmay_~.___..
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.
.Artiols19'70,of 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 jurdsdicticrtwith 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.teCounty
Ccurix at Law and confer upon them the original and concurrent juris-
diction, in civil and criminal matters, which the County ?!ourthas,
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
Honorable R. A. Weinert, page 6 O-3407
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.
Article 6, Section 18 of the Constitution specifically provides
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 of 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
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, Soxneproper 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 IXIsaid that the
Judge of the County Court at Law in su~ohinstanoss 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 .ajudge 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, avhherethe
judge failed to attend a meeting of the county oOwt, to
elect a special judge. WS do not beli.evethis 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?,rethe selection of a special judge
by the membsrs of the bar. It is contended in this oon-
neotion that the ciountyjudge is required to give bond,
and no provision is found in the act with reference to a
apeoialjudge 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 of 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 @ O-3407
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 ,substitutewould not be holding and exer-
cising two offices when performing.the,dut.iesof 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.cesare 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~gesof 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 of 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, pariaany local or special law,
authorizing?
FIonorableR. A. Weinert, pege 9 O-3407
"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, .justioesof the
peace * . . .
"And in all other ceses where a general law can be
made applioeble no local or speoial le.8shell 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:ountyCourts at Law have been created for se~t:~;:?
different oounties of Texas. Acoording to the lest Fedaim Census.
Ilallesand 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'scedwith 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',onof ~Artiole3, 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.evethe authorities therein cited will be helpful in
passing upon this question.
Su!:jeotto 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 O-3407
We trust that we have fully anslreredyour inquiry.
Harold Mctiecken
Assistant
HM:ejnvc
Encl.
APPROVED MAY 2, 1949
s/Grover Sellers
FIRST A,SSii:TANT
ATTORI&Y GENERAL
This Opinion Consider And Approved In Limited Conference