Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
October 7, 1981
Honorable Bill M. Reimer Opinion No. m-374
Coma1 County Attorney
Room 112, Courthouse Re: Authority to call special
New Braunfels, Texas 18130 election for commissioner's
court when regular elections
were enjoined.
Dear Mr. Reimer:
Article XVI, section 65 of the Texas Constitution provides that
county commissioners are to be elected for staggered terms of four
years. Prior to the last general election in Coma1 County, however, a
suit was brought against the county, with the result that a federal
court enjoined the county from holding its scheduled election for
commissioners in precincts one and three. The suit "as subsequently
dropped, and the injunction was then lifted. Your question is as
follows:
Is there any statutory provision authorizing a
County Judge or County Commissioner's Court to
call a special election for County Commissioners
when the original primary and general election
were enjoined due to allegations of population
imbalance, but when such injunction was
subsequently dismissed after the county's
redistricting plan was approved?
Article V, section 18 of the Texas Constitution provides that
county conrmissioners shall continue to perform the duties of their
office until their successors "shall be elected and qualified." See
also Tex. Const. art. XVI, 917. Therefore, until such time as
successors to the incumbent commissioners in precincts one and three
have been elected or appointed and have qualified, said incumbents
continue in office.
Dollinger V. Jefferson County Conmissioners Court, 335 F. Supp.
340 (E.D.T~x. 19711, holds that a cormnissioners court has no authority
to call elections in any manner other than as provided in Texas law.
Regular elections must therefore be held at the times specified in the
constitution and statutes, and special elections may only be called
for the purposes and under the circumstances spelled out therein. We
p. 1259
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Bill M. Reimer - Page 2 (Mw-374)
have been cited no provision, nor have we located any, which would
authorize a county judge or commissioners court to call a special
election under the circumstances you describe. Compare Elec. Code
art. 4.09 (special election may be called to fill vacancy which is to
be filled by election). We therefore answer your question in the
negative.
Although YOU only inquire as to the authority of the
commissioners court to call a special election under these
circumstances, we feel compelled to point out that under Texas law, a
vacancy now exists in the precincts in question within the meaning of
article 2341, V.T.C.S. That statute provides as follows:
In case of vacancy in the office of
commissioner, the county judge shall appoint some
suitable person living in the precinct where'such
vacancy occurs, to serve as commissioner for such
precinct until the next general election.
Tom V. Klepper, 172 S.W. 721 (Tex. Civ. App. - El Paso 1915, writ
ref'd), is almost squarely on point. In that case, Tom, who was
elected county commissioner in 1912, alleged that the failure to hold
a general election in 1914 meant that he was entitled to continue in
office until a successor was "elected and qualified" within article V,
section 18 of the constitution. The court held, however, that under
the facts, a vacancy existed in the office of commissioner in Tom's
precinct. It stated as tallows:
Our opinion is that there was a vacancy in the
office of county commissioner for that precinct,
within the meaning of article 2240 [now article
2341, V.T.C.S.], above quoted, at the expiration
of appellant's full two years' service [now four
years], by reason of the failure to elect a
commissioner for that precinct at the general
election in 1914. We think this view accords with
the settled policy of our state Constitution
restricting the duration of the terms of oifice,
as provided in the articles of the Constitution
and statute quoted. A holding beyond the two
years would be by sufferance, rather than from any
intrinsic title to the otfice.
172 S.W. at 723. See also Clark V. Worn&l, 65 S.W.2d 350 (Tex. Civ.
APP. - Waco 1933, no writ); 47 Tex. Jur.2d Public Officers $44.
In view of these authorities, we believe the county judge of
Coma1 County may now appoint a successor to serve until the next
general election. In any event, an election must be held in the
precincts in question at the next general election to elect
commissioners to serve the remainder of the unexpired terms. V.T.C.S.
art. 2341.
p. 1260
Bill M. Reimer - Page 3 (MW-374)
SUMMARY
Texas law does not authorize a county judge
or commissioners court to call a special election
to vote on county commissioners when the regular
election was enjoined but the injunction was
subsequently lifted.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
James P. Allison
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
P. 1261