Untitled Texas Attorney General Opinion ( 1944 )

Honorable V. B. Gear
County Attorney
Blanco county
Johnson City, Texas
Dear Sirr Opinion No. O-6300
Re: In case of vacancy in the office
of oonrmissioner,the County Judge shall
appoint some suitable person living in
the precinot where such vacancy occurs
to serve as commissioner for such pre-
cinct,uhtil the next general eleotion.
Yourletter of November 25, 1944, requestingthe opinion of this
department on the question stated therein is as follows8
"On the 7th day of November 1944 Damon Sharp was elected
County Commissioner of Precinct Number Three (3) of Blanoo Coun-
ty, Texas, for the term beginning January 1st 1945. On the 20th
day of November, 1944, the said Damon Sharp Aisd. One J. J.
Stewart is now the County Commissioner for said Precinct i%nnber
three, he having been elected for this term which expires Janu-
ary lst, 1945.
"Question; How does the law provide that this offioe for
said Precinct Number Three (3) be filled?
"In making my investigation of this matter, it is my opin-
ion under Article 2953a ofthe Revised Statutes, under Section 6
that said officer must be elected, at an eleotion that the Com-
missioners Court must order, said election to be held not earlier
than thirty days after notice is Kiven.
"Section 6 of said Article 2953a under 'Election on death of
officer-elect' provides When the officer-elect to an office which
must be filled by election dies or become8 ineligible to qualify
for the offiae to which he 'waselected, the proper officer shall
inmediately order an election to elect a successor to the incun-
bsnt of the office.'
"WLll you please examine this matter, and 1st me know what
your opinion is as soon as possible."
Hon. C. B. Gear - page 2 (O-6300)
Article 2341, Vernon's Annotated Civil Statutes, provides:
"In case of vacancy in the office of commissioner, the
county judge shall appoint some suitable parson living in the
precinct where such vacancy occurs, to serve IS commissioner for
such precinct until the naxt general election."
It was held in our Opinion No. O-4349, among other thingsr
"In 0~80 of a vacancy in the County Commissioner's Court,
the County Judge is authorized to make an appointment to fill
such vaoancy. Revised Civil Statutes, Article 2341.'
Referring to Seotion 6 of Article 2953r, Vernon's Annotated
Civil Statutes, it was said in our Opinion No. O-5093:
"In construing the meaning of the above quoted provi-
sion, in connection withthe situation presented in your letter,
we are necessarily called upon to determine whether the office
of district clerk is 'an office which must be filled by an sl-
action' as that term is used in the act. If the office can or
may be filled in any way other than by election, it is not 'an
office whichmust bs filled by an election."
In our Opinion E!o.O-2965, construing Article 2953a, Vernon's
Annotated Civil Statutes, it wze aaid:
"It is, therefore, sufficient to say, whatever the effect
of Article 2963a, that it cannot apply to the office of sheriff
Luoause it is not one 'a vacanoy of xhioh is to be filled by an
election.'"
Under the faots stated, it is ar opinion that a vacancy will
exist in the office of county commissioner of January I& 1945. We think
that the statement ia supported by the oases of State v. Cooke, 54 Tax.
482) Haddox v. York, 64 S.W. 24~ 93 Tax. 2757~ and Dobkins v. State, 17
S.W. (2d) 81, 19 S.W. (26) 574.
You are respectfully advised that it is the opinion of this
department that Article 2963a,,Vernon's Annotated Civil Statutes, ha8 no
application to the question under consideration. Therefore, it is our
Hon. V. B. Gear - Page 3 (o-6300)
further opinion with reference to the vacancy which will exist in the
county commissioner's office on January 1, 1945, 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 gen-
eral election.
Yours very truly
ATTORNEY GEN.RAL OF TEXAS
Ardell Williams
Ardell Williams
Assistant
APPROVED DEC 4, 1944
s/ Grover Sellers
ATTORNEY GBNERIU,OF TEXAS
APPROVED Opinion Committee
By GWB Chairman