AUSTIN ~.TExAs
PRICE DANIEL
ATTORNEYGENERAL
January 28, 1949
Hon. F. B. Caudle Opinion 180, V-761.
County Attorney
Frenklin County Re: The period of an appoint-
Mount Vernon, Texas ment to fill a vacencg in
the office of Dlstpict
Clerk; same having been
made after the last gener-
al election and before the
next tern to which the de-
ceased had been elected.
Dear Sir:
Reference is made to goup recent request
which reads in substance as follows:
“The District ~Clerk of Franklin County,
who was reelected at the November Election,
1948, died thereafter on the 15th. of Hovem-
bep, 198~ The two District Judges. 0 0
made an appointment as provided by law; an6
the appointee accepted and qualifier%.
“Does the appointment filling the vacan-
cy of the District Clerk8s Office pun to the
next Genepal Election, 1950; op since the
vacancy and appointment occuPed between the
General EIection anti the following Jan. 1, is
it necessary that there be an appointment OP
reappointment as of Jan. 1, 1949. In other
words when does the appointment expFPe?
Art. XVI, Sec. 27 of the State Constitution
proviaes aa follows:
“In all elections to fill vacancies of
office in this State, it”shall be to fill
the unexpired term only,
Art. 1895, V. C. S., provides as follows".
Hon. F. B. Caudle, page 2 (V-761)
%he~ve~ a vrcaney oceura tn the of-
fice of district clerk, It shall be filled
by thii district judge of such c6unty; and
such appointee shall give bond and qualify
and may hold his officd until the next gen-
eral election. Where a vacsney occurs in
a count.. having two or more district courts,
the vacency shall be filled by the judges
of such courts; and if they fall’ to agree,
the Governor, upon the certificate of suoh
judges, shall opde; a special election to
fill such vacancy.
We ham been unable to f1nd.a case where the
courts have passed upon this specific qriestion. How-
ever, in the case of Dobklns v, Reece, 17 S,U. (26) 81
(Writ of &TOP Refurod), in construing slmlla~ statuto-
ry and constitutional ppovisionr we find the followingn
“This appeal involves a eonteat ovep the
office of sheriff of Cpoke aounty. Jake
Wright was the duly lectrd and sating sher-
iff of Cooke oounty OP the ten br&.inln
Januspy ,l, 1927, and indlng January 1, ,19 s 9.
He was du y nominatscl duriag ‘the Jgly phi-
mart, 1929, and~’ wa.8 reelected
’ at the-succeed-
ing general eiection, lovembor 6, 1928. On
Deceibrr 12, 1928, he died, without having
qualified under his new term, On December
14, 1928;tho county oommirr~onr~s~ coin%
elected or appbinted Jonathaii Dobkins aa
sherl;ff , who bappenod to ba at the time of
his appointment a member of the oommlssion-
ei9 9 couiit, but, as-‘he testified; did not
participate iii the appointment, and was not
present thereat,
”
e * e
‘Dibkinr filed hll bond on the 14th of
December, ~1928, and qualified and entaped
upon the. dutie,s of his offior. It so hap-
pen.6 that the po~~onnol of the cotission-
em 9 court changed on JmuaPy 1, 1929, and
two of the former members retirbd, and two
new nembem qualified. On Janiiapy 2, 1929,
the matter~~of the election OP appointment of
a shoplff again wa8 conaldored by the ooxas.Ls-
aloners 1 cow?t, and Ate Weeee warnelected,
0 0 e
Hon. F. B. Caudle, page 3 (V-761)
“The two questions which we think me
important ,and involved in this case aPe8 (1)
Was the original appointment by the commis-
sioners 1 court of Dobkins merely for the un-
explped temn ending December 31, 1928, and
not including the’tepm beginning January 1,
1929, or, did the appointment extend to the
two succeeding years, and until December 31,
1930, or January 1, 19317
“The Constitution. 1iPllts the term of
the sheriff to two years. He cannot be
elected for two terms at the same election,
a fortiorl, h6 cannot be appointed fop two
terms, OF a pa& of one term and whole of
the succeeding term at one end the same
time. when the duration OF term of an of-
fice la a question of doubt OF uncertainty,
the interpretation should be followed which
limits such office to the shortest term.
Wright v. Adams, 45 Tex. 134, Other au-
thoritles might be cited, but we believe
in the discussion heretofore sufficient has
been said to show that in our opinion the
appellantOa term under his appointment in
December, 1928, had expired at the time the
election was had by the eommiasionePsB
court on Januuy 2, 1929, If such view be
correct, then it follows that a vacancy
existed, for the new term of two yeapa foP
which the deceased, JakG Wright, had been
elected by the voters of Cooke couI1tr, -4
that the commissioners0 cauPt had authors-
ity to fill such vacancy,
In view of the foregoing it IS oup Opinion
that~~the appointment of the District Clerk expires on
Januaxy 1, 199.
However, Art. XVI, Sec. 17, provides that”
!A11 officers within this State shall
continue to perform the duties of their of-
fices untii their successors shall be duly
qualified.
Hono F. B. Caudls, page 4 (v-761)
Art. 18, v. Co S., pPovl&es in part as Sollowsn
'Each officer, whether elected OP ap-
pointed under the laws of this State, and
each Commissioner, or member of any board
or commission created by the laws of this
State, shall hold his office for the term
pxWride& by law and until his successor ii
elected or appointed and quallfiesp 0 0 0
It is apparent from the Sopegoing that the
present District Clerk shall continue to sot until his
successor is appointed and qualifies,
Where the Distriot Clerk of Fpanklih
County was reelected to succeed himself at
the Bovember election 1948, died on the
15th of Bovember, 1948, and the District
Judges made an appointment to Sill the va-
cancy a6 provided by law, said appointment
expired on the first day of January, 1949,
Apta XVI, Sec. 27 of the State Const,? Apt,
(2dy,8y1 C, S.8 Dobkins ve Reece, 17 So W,
vwy truly youPs,
ATTORBEYGgagRALOF TEXAS
BA:bh Assistant