PRICE DANIEL 

ATTTORXEY GENERAL 

Ron. K. D. Hall 

County Attorney 

Refugio County 

Refugio, Texas 

Opinion Ho. V-615 

Re: The authority of a 

Special County Judge, 

elected by the local 

bar to serve dwlng 

illness of the County 

Judge, to preside 

OV82’ th8 COllEUiSSiOnem1 Court and related questions. 

Dear Sir: 

Reference la made to your recent request which 

reads, In part, as follows: 

“Cur County Judge Is sick and cannot 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 became sick, the lawyers of the local bar 

elected a Special County Judge to take 

his place, and the ctnm.issioners not 

knowing a Special Judge had been appointed, elected one’of Its members to preside 

over the court during the absence of the 

County Judge. 

“My questions are as follows: 

“1. Is such Special Judge to act as 

Fz-officio School Superintendent? 

“2. Is such Special Judge to preside ,:~ 

over the Commissioner’s Court?. 

“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 elected 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 

pendlng in said co&t %%E the a&:8, 

of any 8 

inability, or such refusal of the county 

W8e. Slmllar elections may be held at 

any time during the term, to supply the 

absence,~fallure or lnablllty of the county judge, or any special judge, to perform 

the duties of the office. When a epecial 

county judge shall hare been so elected, the 

clerk~ehall enter upon the mlnuter of the 

court, a record such as La provldeQ ior In 

like cases In the district coI,+. 

added throughout) 

(Emphasis 

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 

praotlolng lawyers of the court present 

may elect from among their number a special judge who shall hold the tour); and 

proceed with the business thereof. 

Under &t&ale 2107, V. C. S. the county 

or Reruglo County 16 the ox-officio County School 4 

udge 

uperlntendet. 

lflth referenoe 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 UnvillUgne8s to serve, a spealal judge elected by 

the attorneys is, withlg the meaning of the 

constitution and lava, a judge of the aourt. 

0 . . Be has all the.authorlty of a regular 
. 

Eon. K. D. Hall, pa@3 3, (V-615) 

judge with respect to cases that properly 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, lnabl iB;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 county 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 otficer 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 dlscharge of buch .ludlCial dutiu as all the 

other judges, all of whom, without exception, wert given compensation for 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 regular COUlItJ judge My PeFfOX'is Otiy vlth r8f8r8ng8 t0 

cases being gri8d before hir, but he does not step into 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 l peclal 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.)lo of 

:, 
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 l uthcrisi~ the 

same and In viev of the fOrO6Oing, it is om oplnlon 

t&t the special COMty j 

8d under the proV:sioM Of "df, 

e of Refugio Couuty eleattitle 193&, la not the eso??lalo aounty school superintendent by reason of such 

election. 

Section 18 of Artiole V of the State Constitution provides, in part, as follows: 

“The county commlerjlonera 80 chosen, 

with the CoDSItS sudne. as Dre6idiru Of2% 

shall cb~~os~ 

ourt, which shall l xer 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 l e may bo hemUter 

prescrlbad. 

Amclo 2342 ud btlcla 2343, V. C. S. -0 a8 

rollovr: 

"Art. 2342. The several comsissicnera, 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 transaotiaa 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 oertlflcate~ of the Court oi Civil Appeals 18 

aonetltuteb by w three oommi88lcn8r8, 

orbfthti county judge andanytm ccw 

drrioaem, ad bonao the ardor uador atkok VB~ duly pa88od at a wet* of the 

court, vlth a quomm pro88at, rogardloss 
,. -..,. ,~ 

Hon. K. D, Hall, page 5 (V-615) 

of the partlclpatlon of the county judge.’ 

The courts of this State have not parsod upon the question of whether the special county judge 

elected under the provlslons of Article 1934 1s also 

to preside over the county coumlssloners’ court. However, in Kentucky, where the State has slmllar constltutlonal and statutory provlslcns to curs, and vhere 

the county fiscal courts petiorm practically the 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 Oeneral Is 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 Constitution and statutes. We fall 

to find any statute authorizing the election 

or appointment of a special county judge to 

preside over or act as a ~member of the commlssloners’ court. Therefore, It Is our 

opinion, that no special county judge can 

be elect;ed or appointed to perforn such 

duties. 

Therefore, in view of the foregoing, your second question is answered in the negative. 

With ref.erence to your third question, ve assume 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 during his absence and inability to serve. 

In the case of Ibr Parte Templeton, 186 S.Y. 

(26) 68, where the regular district judge vas on active 

duty in the service of the United State8 Ilavy, the practicing lawyers of said district elected a special judge 

of said court during the absence of the regular ju e 

In compliance vith 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 practiciry 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 

in Article 18 5 7, 

judge to serve undrr the proced&e set out 

et seq., and In view of the foregoing, 

it 1s our opinion that such special county judge my continue to serve from term to term ln the absence or lnabllity of the regular county judge. 

A special county judge elected under 

the provlslt~nr OS Article 1934, v. C. s. 

Is not authorized to act aa ex-officio 

school ru$erlntend nt. 

County,102 S.w.(2dT 196. 

Holland v. Harris 

A apeclal couuty judge elected under 

the provisions of ktlcle 1934, V. C. S. 

1s not authorlwd to preside over the comriss1onorr ' oourt. Jefferson Couuty Fiscal 

Court v. Qraiiman, 136 S.W.(2d) 1102: Attorney 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 

BA:mw 

JJY 

Amslstant 

APPROVED: 

RREY GENERAL 

.