PRICE DANIEL

ATTTORXEY GENERAL

Ron. K. D. Hall County Attorney Refugio County Refugio, Texas OpinionHo. V-615 Re: The authorityof a Special County Judge, electedby the local bar to serve dwlng illness of the County Judge, to preside OV82’ th8 COllEUiSSiOnem1 Court and related questions.
Dear Sir: Referencela made to your recent requestwhich reads, In part, as follows:

“Cur CountyJudge Is sick and cannot attendhis duties as County Judge. “CurCountyJudge Is, In addition to CountyJudge, Ex-OfficioCounty School Superintendent.
“A day or two after the Judge became sick, the lawyers of the local bar electeda SpecialCountyJudge to take his place,and the ctnm.issioners not knowinga SpecialJudge had been appointed, electedone’of Its members to preside over the courtduring the absence of the CountyJudge. “My questionsare as follows: “1. Is such Special Judge to act as Fz-officio

School Superintendent? “2. Is such SpecialJudge to preside ,:~ over the Commissioner’s Court?. “3a When does the authorityor powgr of the SpecialJudge 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 shouldhe 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 electionof a specialdistrict judge. The sp8clal county judge so elected shall have all the authorityof the county judge while In the trial and d BDO pendlng in said co&t the a&:8, %%E of any 8 inability,or such refusal of the county W8e. Slmllar electionsmay be held at any time during the term, to supply the absence,~fallure

or lnabllltyof 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: "Shouldthe 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 special judgewho shallhold the tour); and proceedwith the business thereof. Under &t&ale 2107, V. C. S. the county or Reruglo County 16 the ox-officioCounty School 4 udgeuperlntendet.lflth

referenoe to the povere and duties of a special judge electedby the attorneys of the b, It IS rtated ln Tex. Jur., Volt. 25, p. 325: "Duringthe continuedabsence of the regular judge,or Us aontlnuedUnvillUgne8s to serve,a spealal judge electedby the attorneysis, withlg the meaning of the constitution

and 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 properly come before him, or, at least, he has such of the regular judge'spowers as are necessary to enablehi? to transact the business of the court. Article 1934, supra,plainly states that the 3peCial COUnty judge so 818Ct8d shall haV8 all the authorityOf the County judgeWhi18 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 Harkwellv. Galveston County, 186 S.W.(2d) 273, the court raid:

"Its terms, however,**do** permit a county judge 'tobe elected in like manner a8 is provided for the electionof a special district judge',etc.; so that, when the provisionsof such other statutesare read Into it, It seems clear that not only was a special county judge m&e a judicialotficer of the State, but he was endowedwith all of the authority of the regular county judgewhile in the dischargeof his duties; in other words, h8 was expresslymade 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 officervhile in the discharge of such ludlcialdUti8q. In othervords, the special county judgemay 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 CountyJuvenile Board as a result of such electioneven 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"df, 8d under the proV:sioM Of 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 Dre6idiruOf2% shall cb~~os~ ourt, which shall l xer clse

ruah 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 comsissicnera, togetherwlth the county judge,shall compose the ~ConmlsalonersCourt, 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 partlclpatlonof the county judge.’ The courts of this State have not parsod upon the questionof whether the special county judge electedunder the provlslonsof Article 1934 1s also to preside over the county coumlssloners’ court. However, in Kentucky,where the State has slmllarconstltutlonaland statutoryprovlslcnsto curs,and vhere the county fiscal courtspetiormpracticallythe same duties as our county commlsslonersv court, the Supreme Court In the case of Jefferson CountyFiscal Court v. Orauman, 136 S.W.(2d) 1102, said:

”

. . that a county’ judgemay appoint a pro Lm. county judge to performall 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 heretoforestated the selection or appointmentof a special county judge Is proper only upon the conditionsspecified in the Constitution and statutes. We fall to find any statuteauthorizingthe election or appointmentof 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 appointedto 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 inabilityto serve.

In the case of Ibr

Parte Templeton,186 S.Y. (26) 68, where the regular district judgevas on active duty in the service of the United State8 Ilavy, the practicing lawyers of said district electeda special judge of said court during the absence of the regular ju e In compliance

vith the provisionsof Article 1887,

. C. 3 s
., and the court held that:

?!herevas no vacancy In the office of district judge,and thereforethe 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 lnabllltyof the regular couut in Article 18 7,

5 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 electedunder the provlslt~nr

OS Article 1934, v. C. s. Is not authorizedto act aa ex-officio school ru$erlntend nt. County,102S.w.(2dT 196. Holland v. Harris

A apeclal couuty judge electedunder the provisionsof ktlcle 1934, V. C. S. 1s not authorlwd to preside over the comriss1onorr

' oourt. JeffersonCouutyFiscal Court v. Qraiiman, 136 S.W.(2d)1102: AttorneyOenaal*s O$ni~n,~o. O-537?. A special county juee electeduuder the provisionsof Article 1934, V. C, S. may continueto serve from term to term during the absence or inabilityof theHon. K. D. Hall, page 7 (V-615)

Yourr very truly, ATTORREXQERXML OF TFiXhB

BA:mw JJY Amslstant

APPROVED:

RREY GENERAL

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