Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 22, 2010
The Honorable Burt R. Solomons Opinion No. GA-0764
Chair, Committee on State Affairs
Texas House of Representatives Re: Whether the Governor is required to appoint
Post Office Box 2910 a judge to the newly created 431 st District Court
Austin, Texas 78768-2910 in Denton County (RQ-0826-GA)
Dear Representative Solomons:
You ask several questions about the Governor's authority to appoint a judge to serve on the
newly created 431 st District Court (the "district court").! The statute creating the district court
provides that "[t]he 431st Judicial District is composed of Denton County" and "is created on
January 1,2011." Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 2, 2009 Tex. Gen. Laws 3010,
3010 (to be codified at TEx. GOV'TCODEANN. § 24.575) [hereinafter Act of May 31,2009]. When
"a new office is created, a vacancy occurs on the effective date ofthe Act ofthe legislature creating
the office." TEX. ELEC. CODE ANN. § 201.027 (Vernon 2003). Thus, a vacancy in the new district
court will exist on January 1,2011. See Act of May 31, 2009, supra, § 2(b), at 3010. Article V,
section 28 ofthe Texas Constitution provides that "[a] vacancy in the office of ... Judge of ... the
District Courts shall be filled by the Governor until the next succeeding General Election for state
officers, 2 and at that election the voters shall fill the vacancy for the unexpired term." TEx. CONST.
art. V, § 28(a) (footnote added); see also TEx. GOV'T CODE ANN. § 24.311 (Vernon 2004) (when
a judicial district is created, "the governor shall appoint a qualified person to the office of district
judge," who serves until the next succeeding general election); Eades v. Drake, 332 S. W.2d 553,555
(Tex. 1960) ("As a usual thing when a district court is created there is a vacancy in the office of
judge to be filled by gubernatorial appointment.").
You first ask whether there is "any requirement that the Governor appoint[] a judge or is the
constitution permissive?" Request Letter at 2. Texas Constitution article V, section 28 uses the
mandatory term "shall" in providing for filling vacancies in district courts and specific other judicial
lRequest Letter at 2-3 (available at www.texasattorneygeneral.gov).
2The general election for state officers is held "on the fIrst Tuesday after the fIrst Monday in November in even-
numbered years." TEX. ELEC. CODE ANN. § 41.002 (Vernon 2003). The next general election following the January 1,
2011 creation ofthe 431st District Court will be in November 2012. "Succeeding" means "[t]ollowing in immediate
succession." See XVII OXFORD ENGLISH DICTIONARY 92 (2d ed. 1989).
The Honorable Burt R. Solomons - Page 2 (GA-0764)
offices. TEx. CONST. art. V, § 28. See State ex rei. Angelini v. Hardberger, 932 S.W.2d 489,493
(Tex. 1996) (stating that Article V, section 28 ofthe Texas Constitution "mandates that' [v]acancies
... shall be filled by the Governor'" (citation omitted)); LeCroy v. Hanlon, 713 S.W.2d 335,339
(Tex. 1986) (noting that the mandatory term "shall" is used in Texas Constitution, article I, section
13); Wood v. State ex rei. Lee, 126 S.W.2d 4, 9 (Tex. 1939) (construing as mandatory the term
"shall" in Texas Constitution article VI, section 4, which provides that in elections by the people,
"the vote shall be by ballot"). However, we are not aware of any constitutional or statutory method
of enforcing this duty. See TEx. CONST. art. V, § 3(a) ("The Legislature may confer original
jurisdiction on the Supreme Court to issue writs ofquo warranto and mandamus in such cases as may
be specified, except as against the Governor ofthe State.") (emphasis added); McFall v. State Bd
ofEduc., 110 S.W. 739, 740 (Tex. 1908) (holding that the supreme court may not issue mandamus
against the State Board of Education, because Governor is a member thereof). See also A & T
Consultants, Inc. v. Sharp, 904 S.W.2d 668,672 (Tex. 1995) (discussing original jurisdiction of
Texas Supreme Court over mandamus proceedings against executive officers). The Texas Court of
Criminal Appeals stated as follows:
[T]he failure on the part of the Governor to appoint a successor to a
deceased district judge was a matter left entirely at the discretion of
the Governor in that no power existed whereby the Governor could
be required to make such appointment, because the Constitution, Art.
V, Sec. 3, expressly renders the Governor immune from the operation
of the writ of mandamus.
Pierson v. State, 177 S.W.2d 975, 978 (Tex. Crim. App. 1944). Accordingly, the Governor cannot
be compelled to fill a vacant judicial offi<;e.
Your second question asks: "What is the time frame for the Governor to make such an
appointment and is there a deadline for such an appointment?" Request Letter at 2. The 431st
District Court "is created on January 1, 2011,,,3 and the vacancy will come into existence on that
date. See TEx. ELEC. CODE ANN. § 201.027 (Vernon 2003). While article V, section 28 provides
a time period in which the Governor may fill the vacancy, no constitutional or statutory provision
establishes a deadline for the Governor to act. Thus, the Governor has authority to fill the vacancy
from the time the office is created until the office is filled by election. See TEx. CONST. art. V,
§ 28(a).
As your third question, you inquire whether the Governor must make an appointment before
the office may be placed on a general election ballot. See Request Letter at 2. "In other words, if
a Governor never makes an appointment, is the District Judge position vacant permanently?" Id.
Texas Constitution article V, section 28(a), after providing for the Governor's filling a
vacancy in a district court ''until the next succeeding General Election for state officers," states that
3See Act of May 31,2009, supra, § 2(b), at 3010.
The Honorable Burt R. Solomons - Page 3 (GA-0764)
"at that election the voters shall fill the vacancy for the unexpired term." TEx. CONST art. V, § 28(a)
(emphasis added). See LeCroy, 713 S.W.2d at 339 (noting the mandatory language "shall be open"
and "shall have remedy by due course oflaw" in Texas Constitution, article I, section 13); Wood,
126 S.W.2d at 9 (Tex. 1939) (construing as mandatory the term "shall" in Texas Constitution article
VI, section 4, which provides that in elections by the people, ''the vote shall be by ballot"). The
requirement that the "voters shall fill the vacancy for the unexpired term" is not contingent on the
Governor's having appointed someone to the office. Thus, even if the Governor does not fill the
vacancy by appointment, the voters will have the opportunity to fill the vacancy at the next
succeeding general election for state officers. See TEx. CONST art. V, § 28(a).
Your fourth question asks: "If a Governor makes an announcement of an appointment which
becomes effective at a later date, must the county provide offices and staff in expectation that the
Justice will be seated on the first day the court is effective and may [preside] over a docket on that
first day[?]" Request Letter at 2-3. We note as a preliminary matter that a vacancy occurs in a
newly created office "on the effective date of the Act of the legislature creating the office." TEx.
ELEC. CODE ANN. § 201.027 (Vernon 2003) .. There is no vacancy in the 431stDistrictCourt for the
Governor to fill until January 1,2011, although he may announce his planned appointment before
that date. 4 See generally Crawford v. Saunders, 29 S.W. 102, 103 (Tex. Civ. App.-San Antonio
1894, writ dism'd) (stating that the commissioners court is not authorized to appoint ajustice of the
peace if there is no vacancy in the office); Tex. Att'y Gen. Op. No. H-134 (1973) at 3 (concluding
that there is no vacancy in an office until the statute creating the office becomes effective).
We consider whether the county must provide offices and staff in expectation that the judge
will be seated on the first day the court is effective and may preside over a docket on that first day.
Denton County is responsible for paying the salaries of various district court personnel and for
providing courtroom space to district courts in the county. See, e.g., TEx. GOV'T CODE ANN. §§
52.051 (Vernon 2005) (providing that the commissioners court budgets the court reporter's salary
set by district judge), 74.104 (requiring compensation of court coordinators for district and county
courts to be funded through the county budget process); TEx. Loc. GOV'TCODEANN. §§ 291.001(1)
(Vernon 2005) (commissioners court shall provide a courthouse at the county seat), 292.001
(commissioners court may provide a building or rooms, other than the courthouse, for housing
county and district offices and courts). Thus, the commissioners court must provide funds and space
to support the new district court when it comes into existence. Accordingly, in preparing the county
budget applicable on January 1, 2011 and thereafter, the commissioners court must allocate funding
for the 431 st District Court, in addition to the district courts that already exist in Denton County. 5
See Tex. Att'y Gen. Op. No. GA-0578 (2007) at 5-7 (discussing funding of district courts and
judiciary's inherent power to order essential funding); see also TEx. Loc. GOV'T CODE ANN . ch. 111,
4See Act of May 31,2009, supra, § 2(b), at 3010.
SThe following statutes establish judicial districts composed of Denton County: TEx. GOV'T CODE ANN. §§
24.117 (Vernon 2004) (16th district); 24.355 (1 58th district); 24.390 (211th district); 24.507 (362nd district); 24.512
(367th district); 24.538 (393rd district).
The Honorable Burt R. Solomons - Page 4 (GA-0764)
subch. C(Vernon2008), Tex. Att'yGen. Op. No. GA-0081 (2003) at 1 (stating that section 111.070,
found in chapter 111, subchapter C, applies in Denton County).
As your fifth question, you ask when the Governor's appointee to the 431st District Court
will be sworn in as district judge. See Request Letter at 3. Texas Constitution article XVI, section
1 prescribes the oath that all elected and appointed officers must take before entering upon the duties
of their offices. See TEx. CaNST. art. XVI, § l(a)-(b). As we have already observed, there is no
vacancy in the 431 st District Court for the Governor to fill until January 1,2011, and January 1,2011
is the earliest date that the Governor may fill the vacancy by appointment. See TEx. ELEC. CaDE
ANN. § 201.027 (Vernon 2003); Act of May 31, 2009, supra, § 2(b), at 3010. Thus, January 1,2011
is the earliest date at which the appointee might take the oath of office.
The Senate confirmation process may affect the time at which an appointee can be sworn in
as district judge. "An appointment ofthe Governor made during a session ofthe Senate shall be with
the advice and consent of two-thirds of the Senate present." TEx. CaNST. art. IV, § 12(b); see also
White v. Sturns, 651 S.W.2d 372,375-76 (Tex. App.-Austin 1983, writ refd n.r.e.) (holding that
persons appointed to fill judicial vacancies pursuant to Texas Constitution article V, section 28, are
subject to Senate confirmation under article IV, section 12). Absent Senate confirmation, a person
appointed during the session will not be entitled to hold the office. See Denison v. State, 61 S.W.2d
1017,1020-21 (Tex. Civ.App.-Austin), writrefd, 61 S.W.2d 1022 (Tex. 1933) (per curiam); Tex.
Att'y Gen. Op. No. GA-0006 (2002) at 2. Thus, a person appointed to the office of district judge
during a legislative session may be sworn in only after Senate confirmation. If the person is
appointed during the interim between sessions, he may qualify for office immediately and be sworn
in as judge, subject to later confirmation by the Senate. See TEx. CaNST. art. IV, § 12(c).
Your sixth question is as follows: "If a Judge is appointed for the 431 st District Court on
January 1,2011, what would be the last day of [the Judge's] term of office?" Request Letter at 3.
A district judge has a four-year term of office. See TEx. CaNST. art. V, § 7. However, when a
person is appointed to fill a vacancy in a district court, he serves in the office only until the unexpired
term is filled by election. See TEx. CaNST. art. V, § 28(a). Government Code section 601.004
provides that "[a] person who receives a certificate of election to an unexpired term of an office is
entitled to qualify for and assume the duties of the office immediately and shall take office as soon
as possible after the receipt of the certificate of election,"6 unless there is a recount of the vote
pursuant to Election Code section 212.0331. TEx. GaV'T CODE ANN. § 601.004 (Vernon 2004)
(footnote added); see TEx. ELEC. CaDE ANN. § 212.0331(a)-(b) (Vernon 2003) (submission ofa
recount petition delays issuance of a certificate of election and qualification for office). Thus, the
Governor's appointee to the district court would serve until the person elected to the unexpired term
of the office qualifies for and assumes the duties of the office. 7
6See TEx. ELEC. CODE ANN. § 67.016 (Vernon 2003) (providing for certificate of election after election
canvass).
7See Spears v. Davis, 398 S.W.2d 921, 926 (Tex. 1966) (explaining that the ''tenn of office" does not
necessarily coincide with an officeholder's ''tenure of office").
The Honorable Burt R. Solomons - Page 5 (GA-0764)
SUMMARY
Texas Constitution article V, section 28 provides that the
Governor shall fill a vacancy in a district court until the next
succeeding general election for state officers when "the voters shall
fill the vacancy." TEx. CONST. art. V, § 28(a). The Governor may
not be compelled by mandamus to fill a vacancy in the office of
district court judge. He is authorized to fill the vacancy in a new
district court from the time the court is created until the office is filled
by election. "[T]he voters shall fill the vacancy for the unexpired
term" at the next succeeding general election for state officers, .
whether or not the Governor has appointed anyone to the court. Id.
The Denton County Commissioners Court must provide
funding for the 431st Denton County District Court, which comes
into existence on January 1, 2011.
January 1,2011 is the earliest date that the Governor may fill
the vacancy by appointment and thus is the earliest date at which the
appointee might take the oath of office. A person appointed by the
Governor to the vacancy in the district court may take the oath of
office immediately, if the appointment is made during the interim
between legislative sessions. If the person is appointed during the
session, pursuant to Texas Constitution article IV, section 12, he must
be confirmed by two-thirds of the Senate present before he may be
sworn in as district judge. A person appointed to fill the vacancy in
the 431 st District Court would serve until the person elected to fill the
vacancy qualifies for and assumes the duties of office.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee