Untitled Texas Attorney General Opinion ( 1948 )

PRICE DANIEL
ATTTORXEY
GENERAL
Ron. K. D. Hall Opinion Ho. V-615
County Attorney
Refugio County Re: The authority of a
Refugio, Texas Special County Judge,
elected by the local
bar to serve dwlng
illness of the County
Judge, to preside
OV82’th8 COllEUiSSiOn-
em1 Court and relat-
ed questions.
Dear Sir:
Reference la made to your recent request which
reads, In part, as follows:
“Cur County Judge Is sick and can-
not attend his duties as County Judge.
“Cur County Judge Is, In addition
to County Judge, Ex-Officio County School
Superintendent.
“A day or two after the Judge be-
came sick, the lawyers of the local bar
elected a Special County Judge to take
his place, and the ctnm.issionersnot
knowing a Special Judge had been appoint-
ed, elected one’of Its members to preside
over the court during the absence of the
County Judge.
“My questionsare as follows:
“1. Is such Special Judge to act as
Fz-officioSchool Superintendent?
“2. Is such Special Judge to preside ,:~
over the Commissioner’sCourt?.
“3a When does the authority or powgr
of the Special Judge cease or terminate?
..
Hon. K. D. Hall, page 2 (V-615)
Article 1934, V. C. S., is as follovs:
"If a county judge fails to appear
at the time appointed for holding the
court, or should he be absent during the
term or unable or unvllllng to hold the
oourt, a special county judge may be elec-
ted in like manner a8 la provided for the
election of a special district judge. The
sp8clal county judge so elected shall have
all the authority of the county judge while
In the trial and d BDO of any 8
pendlng in said co&t %%E the a&:8,
inability,or such refusal of the county
W8e. Slmllar elections may be held at
any time during the term, to supply the
absence,~fallureor lnablllty of the coun-
ty judge, or any special judge, to perform
the duties of the office. When a epecial
county judge shall hare been so elected, the
clerk~ehallenter upon the mlnuter of the
court, a record such as La provldeQ ior In
like cases In the district coI,+. (Emphasis
added throughout)
btiCl8 1687, v. c. s. reads a6 follovs:
"Should the juQe of a district court
on the first or any rUtUP day of a term,
fall OP refuse to hold the court, the
praotlolnglawyers of the court present
may elect from among their number a spe-
cial judge who shall hold the tour);and
proceed with the business thereof.
Under &t&ale 2107, V. C. S. the county udge
or Reruglo County 16 the ox-officio County School 4uper-
lntendet.
lflthreferenoe to the povere and duties of a
special judge elected by the attorneys of the b, It IS
rtated ln Tex. Jur., Volt.25, p. 325:
"During the continued absence of the
regular judge, or Us aontlnued UnvillUg-
ne8s to serve, a spealal judge elected by
the attorneys is, withlg the meaning of the
constitutionand lava, a judge of the aourt.
0 . . Be has all the.authorltyof a regular
.
Eon. K. D. Hall, pa@3 3, (V-615)
judge with respect to cases that proper-
ly come before him, or, at least, he has
such of the regular judge's powers as
are necessary to enable hi? to transact
the business of the court.
Article 1934, supra, plainly states that the
3peCial COUnty judge so 818Ct8d shall haV8 all the
authority Of the County judge Whi18 in the trial Of
case Dending in said court during the absence, lnabliB;z
-
ity, or such refusal of the county judge.
In the case of Harkwell v. Galveston County,
186 S.W.(2d) 273, the court raid:
"Its terms, however, do permit a coun-
ty judge 'to be elected in like manner a8
is provided for the election of a special
district judge', etc.; so that, when the
provisions of such other statutes are read
Into it, It seems clear that not only was
a special county judge m&e a judicial ot-
ficer of the State, but he was endowed with
all of the authority of the regular county
judge while in the discharge of his duties;
in other words, h8 was expressly made the
s-8 kind of an offiCe2' Vh118 in the dls-
charge of buch .ludlCialdutiu as all the
other judges, all of whom, without excep-
tion, wert given compensationfor their
services.
The court states that the special county judge
la made the same kind of officer vhile in the discharge
of such ludlcial dUti8q. In other vords, the special
county judge may perform all the duties that the regu-
lar COUlItJjudge My PeFfOX'isOtiy vlth r8f8r8ng8 t0
cases being gri8d before hir, but he does not step in-
to the shoes Of the re@Ilul COUUty jUa8 for aI1 PUP-.
pOS8S.
In the CaS8 of Holland~v.Hsrrls County, 129
Tex. 118, 102 S.w.(2d) 196, the Suprune Court ImpllMlly
held that a lpeclal district judge sleeted in the same
manner and under sitilar CiPC~tW%es as vas the 8p8-
clal county judge in this case, was not legally a me+
ber of the County Juvenile Board as a result of such
election even though the r8gular district judge vam a
member of said board. We believe the same prlnal.)loof
:,
Hon. K. D, Hall, page 4 (V-615)
lav is applicable here in regard to the special county
judge.
In the abSenC8 Of anj Statute luthcrisi~ the
same and In viev of the fOrO6Oing, it is om oplnlon
t&t the special COMty j e of Refugio Couuty eleat-
8d under the proV:sioM Of"df,title 193&, la not the es-
o??lalo aounty school superintendent by reason of such
election.
Section 18 of Artiole V of the State Constitu-
tion provides, in part, as follows:
“The county commlerjlonera 80 chosen,
with the CoDSItSsudne. as Dre6idiru Of-
shall cb~~os~
2% ourt, which shall lx e r c lsruah
e povers
and jDrliiluctton 0v.r all county bnd.n6m3,
a6 18 con?erred by this Conatltutioa and the
lavs sf themState, or le may bo hemUter
prescrlbad.
Amclo 2342 ud btlcla 2343, V. C. S. -0 a8
rollovr:
"Art. 2342. The several comsissicn-
era, together wlth the county judge, shall
compose the ~Conmlsaloners Court, and the
county jud&e, Vhen pFe8eIlt,'hall be the
prealdlng officer of said Couz=t.
"bt. 2343. Any three nmbere of the
said court, lnclu&ing the county j-s,
ahall constitute a quorm ior the trans-
aotiaa 0r my burrUi88q,exoept that of
levy* a county tu.
fn t&o -8* Of IkltOn I. ti18B, 215 S.W. 439,
the suprur Court 8tat.b:
(I a quorur for the tfwmactloa
of au& i&M88 Of the OOlli881OZIeZ's'
court a8 th8t rrforr8d to lu the oertl-
flcate~ of the Court oi Civil Appeals 18
aonetltuteb by w three oommi88lcn8r8,
orbfthti county judge andanytm ccw
drrioaem, ad bonao the ardor uador at-
kok VB~ duly pa88od at a wet* of the
court, vlth a quomm pro88at, rogardloss
,. -..,. ,~
Hon. K. D, Hall, page 5 (V-615)
of the partlclpatlonof the county judge.’
The courts of this State have not parsod up-
on the question of whether the special county judge
elected under the provlslons of Article 1934 1s also
to preside over the county coumlssloners’court. How-
ever, in Kentucky, where the State has slmllar constl-
tutlonal and statutory provlslcns to curs, and vhere
the county fiscal courts petiorm practicallythe same
duties as our county commlsslonersv court, the Supreme
Court In the case of Jefferson County Fiscal Court v.
Orauman, 136 S.W.(2d) 1102, said:
”
. . that a county’judge may appoint
a pro Lm. county judge to perform all of
the duties of the r%@lar county judge in
Se9 also Martin v. Stumbo, 140 S.Y.(2d) 405.
Alao in a former Attorney OeneralIs Opinion
Ho. O-5374, in answering this question, it was stated:
“As heretofore stated the selection
or appointment of a special county judge Is
proper only upon the conditions specified
in the Constitutionand statutes. We fall
to find any statute authorizing the election
or appointment of a special county judge to
preside over or act as a ~memberof the com-
mlssloners’ court. Therefore, It Is our
opinion, that no special county judge can
be elect;edor appointed to perforn such
duties.
Therefore, in view of the foregoing,your se-
cond question is answered in the negative.
With ref.erenceto your third question,ve as-
sume that pursuant to Article 1934 and under the pro-
Hon., K. D. Ball, page 6 (V-615)
visions of kt. 1887, the special county judge vas
elected to 6erve in the place of the cotmty judge dur-
ing his absence and inability to serve.
In the case of IbrParte Templeton, 186 S.Y.
(26) 68, where the regular district judge vas on active
duty in the service of the United State8 Ilavy,the prac-
ticing lawyers of said district elected a special judge
of said court during the absence of the regular ju e
In compliancevith the provisions of Article 1887,3 . C.
s ., and the court held that:
?!here vas no vacancy In the office
of district judge, and therefore the prac-
ticiry attorneys had a right to elect a
special judge to serve durluz the absence
of the renular judnq , . . l
Therefore, since the special county judge was
elected to serve during the absence and lnablllty of the
regular couut judge to serve undrr the proced&e set out
in Article 1857, et seq., and In view of the foregoing,
it 1s our opinion that such special county judge my con-
tinue to serve from term to term ln the absence or lnabll-
ity of the regular county judge.
A special county judge elected under
the provlslt~nrOS Article 1934, v. C. s.
Is not authorizedto act aa ex-officio
school ru$erlntendnt. Holland v. Harris
County,102S.w.(2dT 196.
A apeclal couuty judge elected under
the provisions of ktlcle 1934, V. C. S.
1s not authorlwd to preside over the com-
riss1onorr' oourt. Jefferson Couuty Fiscal
Court v. Qraiiman, 136 S.W.(2d) 1102: At-
torney Oenaal*s O$ni~n,~o. O-537?.
A special county juee elected uuder
the provisions of Article 1934, V. C, S.
may continue to serve from term to term
during the absence or inability of the
Hon. K. D. Hall, page 7 (V-615)
Yourr very truly,
ATTORREX QERXML OF TFiXhB
JJY
BA:mw
Amslstant
APPROVED:
RREY GENERAL
.