Untitled Texas Attorney General Opinion ( 1939 )

Hon. L. A. Wood Attention: Hon. T. M. Trimble State Superintendent Public.Instruction Apstin,.Texas Dear Sir: Opinion No. C-1664 Re: One appointed to the office of County School Superintendent may hold the office until the next general election, irre- spective of the length of the unexpired term of his prede- cessor. Your letter of November 6, 1939, to Gerald C. Mann, Attorney General of Texas, hasbeen received by this department. Your letter states that Mrs. Guy T. Newton has been appointed to PQl the unexpired term of her deceased,husband as County Superintendent. You quote from a letter reoeived by you from &frs.Newton.as followst "In my special case, my husbandts term would have expired January 1, 1943, sinoe this is a four year office and he bad served not quite one years of his term. I am told that I can hold it until the next general eleotion, but it ssems.to me this sould be interpreted as meaning until the next general election for this office, which would occur 4 1942. Which interpretation is correct?" Your attention is direoted to Article 2688, Revised Civil Statutes of Texas, as follows: "The Commissioners' Court of every county having three thousand scholastic population or more as shown by the preceding scholastic oensus, shall at a general eleot$on provide for the election of a County Superinten,dentto serve for a term of four years, 5fi * 0" Then, we direct your attention to Artiole 2355, Revised Civil Statutes of Texas, as amended by the Acts of 1927',Fortieth Legislature, wherein the Commissioners8 Court is given the power to fill vacancies, as followsi~ "The court shall have power to fill vacancies in the Hon. L. A. Wood, page 2, O-1664 office of: county judge, county clerk,sheriff, county attorney, county treasurer, county surveyor, aounty hide inspeotor, assessor of taxes, collector of taxes, justices of the peace, oonstables and county superin- tendent of Public Instruotion. Suoh vacancies shall be filled by a majority of the members of said court, present and voting, and the person ohoosen shall hold office until the next general eleation." (Underscoring ours). You will note that the above statutory provision, Article 2355, applies to the filling of vaoancies in county offices. Whereas, Article 4, Seotion 12 of the Constitution of Texas applies to the filling of vacancies in~state and district offioes by appointment of the Governor, as follows: "All vacanoies in state or district officesp except members of the Legislature, shall be filled unless otherwise provided by law, by appointment of the Governor, which appointment, if made during its Session, shall be with the advice and consent of two-thirds of the Senate present. If made during the recess of the Senate, the said appointee, or some other person to fill such vacancy, shall be nominated to the Senate during the first ten days of its Sessia. If rejected, said office shall immediately beoome vacant,.and the Governor shall without delay, make further nominalions, until a confirmation takes place. But should there be no confirmation during the Session of the Senate, the Governor shall not thereafter appoint any person to fill such vacancy who has been rejected by the Senate; but may appoint some other person to fill the vacancy until the Session or until the Regular Session to said offiae, should it sooner occur. Appointments to vacancies in offices elected by the people shall only continue unt 1 the first general election thereafter." (Underscorxi+ g ours.). Prior to 1931, the office of county school superintendent was for a term of two years. Sinae 1931, the offioe of county school superintendent has been for a term of four years. The other oounty offioes enumerated in Article 2355 are for terms of two years. There are numerous distriot and state offices for longer terms than two years, and irrespeative of the length of the unexpired term of the appointeers predecessor, the appointee may only hold office until the next general election. There baa been no judioial oonstruotion of Article 2355, aforesaid, as to the office of county school superintendent. However, the language is clear and is not Hon. L. A. Wood, page 3, O-1664 subject to a contrary construction than that the appointee must be up for election, and that the offioe is open to election at the next general election, and that the term of the appointee ~$11 expire on Jsnuary 1st following the next general eleotion. That is, where an elective office is vaoant and is filled by appointment of the Governor or Comaissioners~ Court, suoh appointive power is only a matter of expediency in that the will and power of the people will prevail to name the incumbent at the next general election. Believing this to answer your inquiry, we are Yours very truly ATTORNEY GRRRRAL QF TRXAS s/ Pat Coon Pat Coon Assistant PC:ob/og APPROVED NOV. 17, 1939 s/ Gerald C. Mann ATTORnEY GBiRRAL OF TEXAS APPROVRD Opinion Committee By BWB, Chairmen