When can a former Texas district judge who served less than four years still be assigned to hear cases?

Texas AG Opinion JM-929: Who Qualifies for the Judge-Assignment Four-Year Exception?

Plain-English summary

Texas courts sometimes need an extra judge to clear a backlog or cover for a judge who has stepped aside. To fill that need, the presiding judge of an administrative judicial region can assign a judge, including certain retired or former judges, to hear cases temporarily. But not just any former judge qualifies. As a rule, a former judge has to have served at least four years on the bench before they can be put on the list of judges eligible for these special assignments. The four-year requirement is a quality-control filter: it keeps the assignment pool to people with real judicial experience.

In 1987 the Legislature carved out a narrow exception. It said a "former district judge who has served as judge of more than one district court" could be on the list even without the four years. The Denton County criminal district attorney asked the Attorney General what that phrase actually means, because it can be read two ways. One reading is literal and narrow: a judge who was separately elected or appointed to two or more different district-court judgeships. The other reading is broad: a judge who, during their tenure, exchanged benches or swapped districts with another judge, which Texas district judges in multi-court counties are specifically allowed to do under Government Code section 24.303.

The Attorney General went with the narrow reading. The exception applies only to a judge who was actually elected or appointed to more than one district court, not to a judge who merely traded benches with a colleague.

The reasoning is a nice example of not reading a statute in a vacuum. Exchanging benches is routine; district judges in busy counties do it all the time to manage dockets. If every judge who ever swapped a bench counted as having "served as judge of more than one district court," then almost any experienced district judge would qualify, and the four-year requirement the exception is supposed to be a small carve-out from would be gutted. In legal terms, the exception would swallow the rule. The Attorney General also had unusually direct evidence of intent. The tape of the House committee hearing showed the provision was written for one specific person: a Galveston County judge who had been appointed by Governor Briscoe to one district court, lost the following election, was later appointed by Governor Clements to a different district court, and chose not to run again, ending up with less than four years total. A legislator said on the record that it was unlikely anyone but that one judge would fit the criteria. That history confirmed the Legislature meant the literal, narrow version, not a broad one that would sweep in ordinary bench exchanges.

Before it could even get to that question, the opinion had to untangle a genuine mess. Three separate 1987 bills all took a swing at the same underlying provision (the part of the old Court Administration Act now living in Government Code section 74.055). One bill just recodified it without changing the substance. A second bill actually rewrote it, adding statutory county court judges to the eligible pool, and that substantive bill controls over the recodification. A third bill added the four-year exception itself. The wrinkle: the second bill repealed the old provision while the third bill amended it, which looks like a contradiction. The Attorney General harmonized them under the rule that amendments to the same statute passed in the same session should be read together where possible. Nothing about the two additions actually clashed in substance; the only conflict was a bookkeeping one about which statute number to attach the amendment to. So the four-year exception takes effect as part of section 74.055.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

The rules for assigning judges live in the Government Code's judicial-administration provisions, and the Legislature has revised the qualifications for assigned and senior judges several times since 1988. The specific four-year requirement, the exception discussed here, and the cross-referenced provisions on exchanging benches (section 24.303) and retired-judge practice limits may all read differently now. If you need to know whether a particular former or retired judge can be assigned today, check the current Government Code and the rules of the Office of Court Administration rather than relying on this 1988 reading.

Who this opinion affected (as of 1988)

Presiding judges of administrative judicial regions: The opinion told them how to apply the four-year exception when deciding which former judges could go on their assignment lists, cabining it to judges elected or appointed to more than one district court.

Former district judges seeking assignments: The opinion clarified that swapping benches under section 24.303 did not, by itself, satisfy the exception; only actually holding more than one district-court judgeship did.

Litigants and court administrators: The opinion helped ensure that judges sitting by assignment met the intended experience threshold, keeping the exception from quietly displacing the four-year rule.

Common questions

What is the general rule for a former judge to sit by special assignment in Texas?
Under the law at the time, a former district judge generally needed at least four years of judicial service to be placed on the presiding judge's list of judges eligible for assignment.

What did the 1987 exception change?
It let a "former district judge who has served as judge of more than one district court" be listed even without the four years of service.

Does exchanging benches count as serving on more than one district court?
No. The Attorney General concluded the exception covers only a judge actually elected or appointed to more than one district court. A judge who merely exchanged benches or districts under section 24.303 does not qualify.

Why read it so narrowly?
Because bench exchanges are common. Counting them would let almost any experienced district judge qualify and would gut the four-year requirement, so the exception would swallow the rule. The legislative history also showed the provision was aimed at one specific judge.

Background and statutory framework

The presiding judge of an administrative judicial region is authorized to assign judges to try cases and dispose of accumulated business (Government Code section 74.056(a)). Section 74.054 lists judges eligible for assignment, including a former district judge or retired or former statutory county court judge who certifies a willingness to serve and to comply with the practice-of-law prohibitions imposed on retired judges by Section 44.005, Title 110B, Revised Statutes, and who is on the presiding judge's list (Government Code section 74.054(a)(3)). Section 74.055 requires the presiding judge to keep a list of judges subject to assignment and sets qualifications, including that the judge have served as a judge for at least four years in a district, statutory, or appellate court.

The statutory history required attention because three 1987 bills purported to affect section 4.015 of former V.T.C.S. article 200a-1, the Court Administration Act provision enacted in 1985 (Acts 1985, 69th Leg., ch. 732, section 2) and now codified as section 74.055. Chapter 148 (Acts 1987, 70th Leg., ch. 148), an omnibus nonsubstantive codification conforming the Judicial Title of the Government Code, repealed article 200a-1 in its entirety and recodified section 4.015 as section 74.055. Chapter 674 (Acts 1987, 70th Leg., ch. 674, section 2.10) substantively reenacted section 4.015 as section 74.055, adding statutory county court judges to those eligible to sit by special assignment; because section 5.01(d) of Chapter 148 provides that any conflicting statute enacted by the 70th Legislature prevails over Chapter 148, the Chapter 674 version prevails. Chapter 674 also specifically repealed section 4.015 (section 2.14). Chapter 516 (Acts 1987, 70th Leg., ch. 516), however, purported to amend section 4.015 by adding subsection (d): "A former district judge who has served as judge of more than one district court is not required to meet the four years of service requirement in Subsection (c)(1) to be eligible to be named on the list." Because Chapter 674 repealed section 4.015 while Chapter 516 amended it, the two appeared to conflict, but they were harmonized under Government Code section 311.025(b) (amendments to the same statute enacted at the same session should be harmonized): Chapter 674 moved the substance of section 4.015 to section 74.055 and added a category of eligible judges, Chapter 516 made a separate addition, and the two additions are not inconsistent in substance, the only inconsistency being one of statutory reference. The Chapter 516 provision therefore takes effect as part of section 74.055 as enacted by Chapter 674. (A footnote observed that a then-recent Texas Supreme Court decision, State v. Preslar, 31 Tex. Sup. Ct. J. 353 (Tex. Apr. 27, 1988), presented a more complex construction problem involving section 74.503 of the Government Code, and that its four concurring opinions underscored the difficulty of harmonizing conflicting statutes adopted by the same session.)

On the merits, the exception applies to a "former district judge who has served as judge of more than one district court," and the question was whether that meant a judge elected or appointed to more than one district-court judgeship or a judge who exchanged benches or districts under Government Code section 24.303 (which allows judges in counties with two or more district courts to exchange benches or districts from time to time). The tape recordings of a hearing before the House Committee on Judicial Affairs made clear that Chapter 516 was enacted to allow one person, a Galveston County judge, to sit by special assignment: appointed by Governor Briscoe to fill a district-judgeship vacancy, defeated in the subsequent election, later appointed by Governor Clements to fill a vacancy in a different district court, and choosing not to run when that term expired, with total service under four years. A representative stated it was unlikely anyone other than that judge would meet the narrow criteria, and because exchanging benches is common, treating every bench exchange as qualifying would let the exception swallow the rule. The Attorney General therefore concluded the Legislature intended Chapter 516 to apply only to a judge elected or appointed to more than one district judgeship, not to any district judge who exchanged benches under section 24.303.

Citations

Statutory authority:

• Government Code section 74.054(a)(3) (judges eligible for assignment, including certifying former and retired judges)
• Government Code section 74.055 (presiding judge's list and qualifications, including the four-year service requirement and the Chapter 516 exception)
• Government Code section 74.056(a) (presiding judge's authority to assign judges)
• Government Code section 24.303 (exchange of benches or districts in multi-court counties)
• Government Code section 311.025(b) (harmonizing same-session amendments to the same statute)
• Government Code section 74.503 (cited in a footnote regarding State v. Preslar)
• Former V.T.C.S. article 200a-1, section 4.015 (Court Administration Act; predecessor of section 74.055)
• Section 44.005, Title 110B, Revised Statutes (practice-of-law prohibitions on retired judges)
• Session laws: Acts 1985, 69th Leg., ch. 732 (Court Administration Act); Acts 1987, 70th Leg., ch. 148 (nonsubstantive codification); ch. 674 (substantive reenactment); ch. 516 (four-year exception)

Cases:

• State v. Preslar, 31 Tex. Sup. Ct. J. 353 (Tex. Apr. 27, 1988) (Texas Supreme Court; cited in a footnote on harmonizing conflicting same-session statutes)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-929
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0929.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

July 5, 1988

Honorable Jerry Cobb
Criminal District Attorney
5th Floor Carroll Courts Bldg.
P. O. Box 2344
Denton, Texas 76201-2899

Opinion No. JM-929

Re: Eligibility of certain former district judges for assignment (RQ-1429)

Dear Mr. Cobb:

You ask about the eligibility of certain former district judges to sit by special assignment. The presiding judge of an administrative judicial region is authorized to assign judges to try cases and dispose of accumulated business. Gov't Code section 74.056(a). Section 74.054 of the Government Code sets out the judges who are eligible for assignment by the presiding judge. Eligible judges include

a former district judge or retired or former statutory county court judge who certifies to the presiding judge a willingness to serve and to comply with the prohibitions relating to the practice of law imposed on a retired judge by Section 44.005, Title 110B, Revised Statutes, and who is on the list maintained by the presiding judge as required by this chapter.

Gov't Code section 74.054(a)(3).

Your specific question is about section 74.055 of the Government Code, which requires the presiding judge to keep a list of judges subject to assignment and sets out qualifications for judges who are eligible to sit by assignment. One of the necessary qualifications is that the judge have served as a judge for at least four years in a district, statutory, or appellate court. You ask about the interpretation of an exception to that four-year requirement enacted by the 70th Legislature. Before we address your specific question, however, it is necessary to review the statutory history of section 74.055 in order to clarify what version of section 74.055 is to be given effect.

The statutes permitting the presiding judge of an administrative judicial region to make special assignments were enacted in 1985 as part of the Court Administration Act. Acts 1985, 69th Leg., ch. 732, section 2, at 2534. The Court Administration Act was initially codified as article 200a-1, V.T.C.S. The provisions that are now in section 74.055 of the Government Code were originally enacted as section 4.015 of article 200a-1.

Three bills enacted by the 70th Legislature purported to affect section 4.015 of article 200a-1. One of those was an omnibus bill conforming the Judicial Title of the Government Code to changes in the law and nonsubstantively recodifying certain statutes, including article 200a-1. Acts 1987, 70th Leg., ch. 148, at 534 (effective September 1, 1987) (hereinafter "Chapter 148"); see id. section 5.01(a) (stating that Chapter 148 is a nonsubstantive codification). Chapter 148 repealed article 200a-1 in its entirety and recodified the substance of section 4.015 of article 200a-1 as section 74.055 of the Government Code.

A second bill also reenacted section 4.015 of article 200a-1 as section 74.055 of the Government Code. Acts 1987, 70th Leg., ch. 674, section 2.10, at 2507 (hereinafter "Chapter 674") (section 2.10 effective September 1, 1987). The reenactment of section 4.015 was, however, substantive. It added statutory county court judges to the judges eligible to sit by special assignment. Thus, the version of section 74.055 enacted by Chapter 148 is different from the version enacted by Chapter 674. Section 5.01(d) of Chapter 148 provides that any statute enacted by the 70th Legislature that conflicts with a provision of Chapter 148 prevails over the Chapter 148 provision. Therefore, section 74.055 as enacted by Chapter 674 prevails over section 74.055 as enacted by Chapter 148.

Chapter 674, like Chapter 148, contained a provision specifically repealing section 4.015 of article 200a-1. Id. section 2.14 (effective September 1, 1987). Nonetheless, a third bill purported to amend section 4.015 of article 200a-1 by adding subsection (d) to read as follows:

A former district judge who has served as judge of more than one district court is not required to meet the four years of service requirement in Subsection (c)(1) to be eligible to be named on the list.

Acts 1987, 70th Leg., ch. 516, at 2128 (effective August 31, 1987) (hereinafter "Chapter 516"). There is no reference in Chapter 516 to the recodification of section 4.015 of article 200a-1; Chapter 516 refers only to section 4.015 of article 200a-1. Because Chapter 674 expressly repeals section 4.015 of article 200a-1 while Chapter 516 amends it, there appears to be a conflict between those two enactments.

Chapters 674 and 516 can, however, be easily harmonized. Gov't Code section 311.025(b) (providing that amendments to same statute enacted at same session should be harmonized). Chapter 674 did not eliminate the substance of section 4.015. It moved it to section 74.055 of the Government Code, and in doing so, added a category of judges eligible to sit by special assignment. Chapter 516 made another addition to the substance of section 4.015. Those amendments are not inconsistent in substance. The only inconsistency is one of statutory reference. Thus, the provision added by Chapter 516 should be given effect as part of section 74.055 of the Government Code, as enacted in Chapter 674.[1]

[1] A recent decision of the Texas Supreme Court presents a much more complex issue of statutory construction involving section 74.503 of the Government Code, which was the subject of several different enactments of the 70th Legislature. State v. Preslar, 31 Tex. Sup. Ct. J. 353 (April 27, 1988). The four concurring opinions in Preslar underscore the difficulty of harmonizing conflicting statutes adopted by the same session of the legislature.

Your specific question is about the interpretation of the provision added to section 74.055 by Chapter 516. That provision makes an exception to the requirement that a judge must have four years of judicial experience to sit by assignment. The exception is for a "former district judge who has served as judge of more than one district court." You suggest that there are two possible interpretations of that language. You suggest that the exception could apply to a judge who has been elected or appointed to more than one district court judgeship or that it could apply to a judge who has exchanged benches or districts pursuant to section 24.303 of the Government Code. Section 24.303 allows judges in counties in which there are two or more district courts to exchange benches or districts from time to time.

The tape recordings of a hearing before the House Committee on Judicial Affairs make clear that Chapter 516 was enacted to allow one person, a judge in Galveston County, to sit by special assignment. Hearing on H.B. 636 before the House Comm. on Judicial Affairs, 70th Leg. (March 11, 1987). The judge was appointed by Governor Briscoe to fill a vacancy in a district judgeship. He was then defeated in the subsequent election to fill the judgeship. Subsequently Governor Clements appointed him to fill a vacancy in a different district court. He chose not to run when the term expired. His total service was less than four years. Representative Hury stated in the committee meeting that it would be unlikely that anyone other than that one judge would meet the narrow criteria set out by Chapter 516. If every judge who ever exchanged a bench were eligible, given how common this practice is, the exception would swallow the rule. Therefore, it is clear that the legislature intended Chapter 516 to apply only to a judge who had been elected or appointed to more than one district judgeship. The legislature did not intend to allow any district judge who has exchanged benches pursuant to section 24.303 of the Government Code to be exempted from the requirement that a judge must have four years of judicial service to sit by special assignment.

SUMMARY

Acts 1987, 70th Legislature, chapter 516, page 2128, adds an exception to the requirement that a judge must have four years of judicial experience to sit by special assignment. Gov't Code section 74.055. The exception is for a "former district judge who has served as judge of more than one district court," and it applies only to a judge who has been elected or appointed to more than one district court. It does not apply to district judges who have exchanged benches pursuant to section 24.303 of the Government Code.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General