Honorable Price Daniel Opinion No. WW-530
Governor, State of Texas
Capitol Station Ee: AppoYntment by ,Governor
Austin, Texas to fill vacancy in the
office of Dkstrict Judge
Dear Governor Daniel:
You request an opinion In answer to the following
questions:
"1. Can Judge Joe Brown enter upon the d'utiesof
his office without appolntment by the Governor, prior ~to
January 1, 1958?
"2. Is the Governor ,authorizedto appoint Judge
Brown to fill out the unexpired term of Judge ,John C,
HOYO, under the following circumstances:
"On August 31, 19,57, the same Judge Joe Brown was .ap-
pointed by the Governor to this newly created 150th Dl~etTlet
court. His nomination was submitted to the Senate in Oct.
17, 1957, and he was not confirmed. Thereafter the Governor
appolnted John C. Hoyo to fill the office. Judge Hoyo dLd
not seek election to the full term. Joe Brown was the only
candidate for the place and he was nominated In the Demo-
cratic Primary and elected November 4."
Your letter further glve.sthe information that Judge
Hoyo has become deceased, and that by reason of his death,
there is now no Incumbent of said 0ffic.e,ofDistri.ctJud~ge.
Our answer to yuur First Question 18 that Judge Brown
cannot, by virtue .ofhis election, snter upon the duties of
the office to which he was elected, prior t,oJanuary 1, 1959.
The Election Code, Art.,1.08, is as foll.ows:
"From and after the effective date hereof
the terms of office of all elective State
and District Offlcera of th'eState of,Texas,
excepting aovernor, Lieutenant Governor,
Honorable Price Daniel, page 2 (WW-530)
members of the Senate, and members of the
House of Representatives, shall begin on
the first day of January next following the
General Eleotlon at which sold respective
State and dlst~at~,offlaer~ were~elected."
(emphasis ours).
And In the case of Rxparte Sanders1 147 Tex. 248, 215 S.W. 26
325 (1948), The Sufieme'Court f T exas held, among,other
things, that,a person eleoted go the,offltieof dietriot judge,.;.
In the November generalseleotlon could not by virtue of his ~ .I:
said electlop, asewne ;me dutiesof that office until the
first of the suoeeedlne January,
We argthus oompelled, both by the applicable.statute
and by the decision of the Supreme Court, to answer the
question in the negative.
The answer to the,seoond questlon'is that the ffovernor
of Texas, is not authorized to appoint Judge'Joe Brown to
serve the .remalnlngportion of the term of office to which he
was previously appointbd and which appointment was rejected
by the Senate of Texar. This la forbidden by the Constitution
of Texas, Article 4, Sebtion"l2, whloh provides as ,follons:
"All vacancies in State or distrlot offices,
,except members of the Legislature..shall be
filled unless otherwise provided by law, by
@ppoiritmentof the Governor, whlch'appolntment,
if made during Its seaslon shall be with the
advice and lon,eetitof two-thirds of the Senate
present, the!said appointee, or some other person
to fill sucn vaoancy, shall be nominated to the
Senate during the first ten days of Its session.
If rejected, said office shall immediately be-
come vacant, and the 'Governor shall, without
delay, make further nominations, until a con-
firmation takes place. But should there be
no ~confirmationduring the session of the Senate,
to fill the vaoanoy until the next session of the
Senate or uritllthe regular election to said office,
should sooner oaaur. ,:Appointments to vaoancles
In offices eleotlve by the people shall only oon-
tinue until the -first general election thereafter."
(Bnphasls ours).
In that clause of the quoted Const&tutlonitXArtiaD~
rhSch cays, "the (Dovernortill not TRERIwFTEfLappotint~uy-
lpIzronzo ff.l.lsWa~~~ who hu been rejected,$F t+
mte:: t,- wo* tm~ ear" a?pri
"M"i -. w#q w-
ant. Mr..Black,.In l@e a*hortta$Fve *; m;c+X
F@urth Edftfon, glves"the &Xlow%ng as w Ie&W
of "thsraaftir"r
"After the time last mentioned;.after th&t
after that timer'aftei?ward~subsequestig;.
ChenaMorth. Faople v* st. LalGLe+p.(kT3.B;
CO., 3w Ill. sdli&lJb:,H.l&z17; lisilmuttav..
~tle@U38nty & sm c&..rl65 lrpp.Dv,
1 4; Imale v. stat6,
573, Iis1lK~K?i,.,lJ4%,
147 *+. Cr. IL 384, 130 LW. 2d gie5,. gci?T*."
m 8&e sts+hm di8fS.n8s
"euch~"e8 ms+nfn@
"Of t&t Bfnd, Igving partl.cuLarquality or ,'
charaofer speciEted. In re Brock, 312 Ft, sbz,
166 L 785~~ 7%T, Imtlcol with, lnaingtryma
6mnt M what hrrrbeenmentioned.. &I re
m.tar3es W!lIl,1114W&K?. 213,*.25% F..Yd!,.7%
AUka, altilar, of the like kind; V~~h'
mneents the objectr~an,already ps&Q8uZsr%&E
Xr~tQaslauhfch arc W mentSoned, W fk &
dasarQttlve and relrhfve word, referrIng,to
the Lrurtentcaeri-ant..Strawberry Wll Land
Corparrtlon v. Starbu&, 124,Va..73, 97 SAL
362,. 366; &3OmQ cx reL lEEllp v., l!&lSc.
sem.u8 ccallml8Rsan,. Iyl kpp.~ mr,m%a,, rnfj7F
B,Y..S,' 703,, mi.*"
The above set 0u-tArtlale of the C@nstZtution Tf p&%X..
IX muat be conatiruedto mean what it says* a& to s+g~w&H it
means. It eaya and meana~t&at when the Oovernor apg.&.nti
some personsto ill1 e va.cancyin the t~ez?m
of'en offZ@xvsnd~
the,appointee ie refused aonflrnation @ chc SenaW,. tiaa
Qavernor cannot again *poZmt the rej+cWd a4ppa&nt~ tDz rtlll
at&d temn a~?’any w- Mtts~I~
simlms
The EcmorabLe Jae Bruwn cannot by virtue SS
his election to,the office at the last
gene- election enter upon the duties of
his office prior to &nuary 1, 19fi9c The .
Honorable Joe EWwwn -ot be appoSnt~edW
,Pfllthe vaarnay nmw ex&8t-
the @avermar tfii
Honorable Price Daniel, page 4 (WW-530)
ing in the office to which he was elected,
his previous appointment by the Governor to
such office for the present term having been
refused confirmation by the Senate of Texas.
Youra
As,s?stantAttorney General
APPROVED:
OPINION COMMITTEE
Riley Eugene Fletcher, Chairman
Marietta McGregor Payne
Cecil Cammack
Morgan Nesbltt
REVIEWED FOR THE ATTORNEY GENERAL:
By: W. V. Geppert
Untitled Texas Attorney General Opinion
Combined Opinion