Attorney General Opinion WW-0550

February 6,. 1959 Honorable Charles 3. Lieck, Jr. Criminal District Attorneys Bexar County San Antonio 5,~ Texas Opinion No. WW-550 Re: Whether the office of’ Dis- trict Judge should be filled by appointment or by special election under the stated Dear Mr. Lieck: faote. You have requested an opinion on the proper method for filling the offiae of District Judge under the, facts set out In the following letter addressed to you by the County Av- dltor of Bexar County: “Judge Raymond Gerhardt was re-elected In ‘the November, 1958 Qeneral Election, to the bench of the 45th Judicial District Court of Bexar County, Texas, to a ne* four year term, beginning January lst, 1959. However, Judge Qer- hardt passed away on December 3lst, 1958, be- fore. the start of the mew term to whloh he had been elected. “On January 5th, 1959, the Hon. Priae Daniel, Covernor of the State of Texas, appointed the Hon. Charles W. Barrow to fill the vacancy in the 45th Judicial District Court. Judge Darrow took his oath oi’offlae on January 6th, 1959, at nhioh time he assumed the duties of Judge of the 45th Judlaial Distriat Court. “In view of the ?a& that one oi the County Judges of Bexar County made a publlt statement that, in his opinion, the Qeveruor did not have the right to make the above appooiutment, but that a Special Eleation should have been held to elect Hon. Charles J. Lleck, Jr., Page 2 (WW-5%) a judge to the 45th Judicial District Court, I would like for you to furnish me with an opinion as to the legality of the Qovernorls action in thia appointment. Please advise as to whether or not the Governor has the right to ~makc such'an appointment or should a Special Election have been called to fill this vacancy. "I would appreciate your prompt action In this matter, as I will be aempelled to hold up payment of Judge Barrow's salary as a member of the Juvenile Board." The questions which you present are: 1. Under the circumstances outlined, was there a vacancy in the office of Judge of the 45th Dlstriot Court? 2. If there was a vaaancy, should the vacancy be filled by appointment by the Governor under the provisions of Artiale V, Section 28 of the Constitution of Texas, or would he have to call a special election under the provisions of Ar- ticle 4.09 of the Eleation Code of the State of Texas? In the brief accompanying your request, you have expressed the opinion that the office was vaaant and would have to be filled by the Governor under the provisions of Article V, Section 28 of the Constitution. We agree with these conclusions. In support of our conclusion that there uas a va- cancy in the office we cite the folloulng authorities: State Cocke, 54 Tex. 462 (1881); Maddox v. York, 54 S.W. 2Am. Clv.App. 1899, affirmed 93 Tex. 2'(> 55 S W i-i- er, 172 S.W. 721 (Tex.Clv.App. 19li, err&'ref. ; Do 1137); TEE,;; Eep- ate ex rel. Reece, 19 S.W.2d 574 (Tex.Clv.App. 1929). In answer to your second qua&ion, ue are of the opinion that the vaoancy was to be filled by appointment of the Governor rather than by a special election. Article V, Sec- tion 28 of the Constitution provides: "Vacancies In the office of ,judges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals and the District Courts shall be filled by,the Qovernor until the next sucoeedlng General Election; . . ." This constitutional provision for appointment by the Governor would control over a statute attempting to provide for a special election to fill the vacancy. However, we are of the opinion that Artlole A.09 of the Election Code does not purport to apply to Hon. Charles J. Lleck, Jr., Page 3 (WW-550) 2au the office of District Judge. It does not undertake to provide the rules for determining whether an office, ora vacancy in an office, Is to be filled by election; It .merely provldes the time and manner for ordering and holding the election where an election is required. Whether a particular offl.ce~ls to be filled by election mustbe Sound elsewhere in the law. Article 4.09, popularly called the "Qarner Amend- ment," was orIgInaLly enacted in 1933 to replace former Article 2952 of the .Revlsed Civil Statutes. Upon the death or reslgna- tlon of an offloer-elect, the vacancy In the new term does not occur until the beginning of the term, and under the former law It had been held that an election to fill a vacancy could not be called until the vacancy actually occurred. The purpose of the amendment was to enable a special election to be ordered and held In ant~iclpatlon of a vacancy before the vacancy actual- ly occurred. In Sections 2 through 6, the statute sets out five different situations under which an election Is to be ordered immediately. Section 6 reads: "Section 6. Election on death of offlcer- elect. When the offloer-elec.t'to~ an offlae which must be filled by election dies or becomes ln- eligible to qualify for the offlae to which he was elected, the proper officer shall lmmedlately order an election to elect a successor toes theln- cumbent of the offICe." Unlike Seations 2 through 5, this se&Ion refers to an "offise which must be filled by eleotion" rather than "anoffice a va- cancy In which" is to be or mu~st be filled by election. Whether this variance In lsnguage was .lntentlonal or Inadvertent, the result Is the same as IS it had referred to a vacancy In-~ office. There are some offices which must be filled by election; ex- amples of such offices being State Senator, State Representa- tive and United States Representative. There Is totally lacking any power to make an appointment to fill either of those of- fices. But where an offiae Is to be Sllled by appointment upon the occurrence of a vacancy, It Is not an office whioh must be filled by election. This was the holding in Attorney qeneral's Opinions O-2965 (l*O), O-5093 (1943),~ and 0-6300 (1944). We conaur In these ,holdlngs. SUMMARY Where a Dlstrlot Judge who had been re- elected to a new term died before the beginning of the term, there was a vaaancy In the new term upon the commenoement~of the term. The va- cancy was to be fllled~ by appointment by ~the Governor until the next general.electlon, under Hon. Charles 3. Lleck, Jr., page 4 (WW-550) Article V, Section 28 of the Constitution. Article 4;Og of the Election Code, relating to special elections to Sill vacancies, does not apply to the office of District Judge. Yours very truly, WILL WILSON Attorney Qeneral of Texas Assistant MKW:bh APPROVED: OPINION COIYHITTEE Oeo. P. Blackburn,, Chairman Charles D; Cablness Morgan Nesbltt 't REVIEWEDFORTHE ATTORNEYGENERAL BY: ,W.V. Qeppert