Texas Attorney General Opinion: H-117 Page: 3 of 5
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The Honorable Joe Reaweber, page 3 (H-117)
Since the Chief Justice of the Supreme Court and the Presiding Judge
of the Court of Criminal Appeals are required by the statute to be members
of the State Election Commission, no civil or criminal legal actions initiated
by a district attorney pursuant to the State Election Commission's advice
could travel the full appellate route of this State's judicial process without
reaching a court upon which sat a member who had already officially con-
sidered and judged the factual and legal basis for the alleged iriolation.
We think membership by such judicial officers on the Cominission would
seriously impair the efficient discharge of their constitutional duties and of
the constitutional duties of the Courts on which they sit. The judges would
recuse themselves and deprive the courts of their presiding officers. The
number of judges available would be less than that contemplated by the Con-
stitution.
In Re House Bill No. 537, 256 S. W. 573 (Tex. 1923) concerned a similar
situation. There the Legislature had attempted to impose upon the Chief
Justice and Associate Justices of the Supreme Court, as individuals, the duty
to control certain facets of district court litigation. The Supreme Court
stated that such statutory duty would conflict with the constitutional duties of
the Justices, would interfere with their efficient performance thereof, and
therefore was void. It said at page 574:
"It is plainly beyond the power of the Legislature
to impose a service on the Justices which would seriously
impair the efficient discharge of the constitutional duties
of the court and of its Justices. "
This decision, we believe, is grounded upon the doctrine of incompatibility,
recognized again by the Supreme Court in Jones v. Alexander, 59 S. W. 2d 1080
(Tex. 1933) where, in deciding that membership by judges on Juvenile Boards
was permissible, it said that the statute requiring such member ship could not
be condemned "unless . . . the additional duties imposed are incompatible with
their other duties conferred upon them by law. . . . "(595 S. W. 2d at 1082)
The common law doctrine of incompatibility protects the basic integrity of
our institutions, cf. Thomas v. Abernathy County Line Independent School
District, 290 S.W. 152 (Tex. Comm. 1927), and we think it must be consideredp. 563
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Texas. Attorney-General's Office. Texas Attorney General Opinion: H-117, text, October 2, 1973; (https://texashistory.unt.edu/ark:/67531/metapth270640/m1/3/?rotate=270: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.