# TheAttorney General ofTexas
October 7,1981

Honorable BillM. Reimer Coma1 CountyAttorney Room 112,Courthouse New Braunfels, Texas 18130 Opinion No. m-374 Re: Authority tocall special election for commissioner's courtwhen regular elections were enjoined.
DearMr. Reimer: Article XVI, section 65 of the Texas Constitution provides that county commissioners are to be elected for staggered terms of four years. Prior tothe lastgeneral election inComa1 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 inprecincts 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 planwas 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 inoffice. Dollinger V. Jefferson County Conmissioners Court, 335 F.Supp. 340 (E.D.T~x. 19711,holds that acormnissionerscourthasno authority to call elections in anymanner other than asprovided in Texas law. Regular elections must therefore be held at the times specified inthe constitution and statutes, and special elections may only be called for thepurposes andunder the circumstances spelled out therein. We

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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 fillvacancy 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 topoint out that under Texas law, a vacancy now exists in theprecincts in question within themeaning of article 2341,V.T.C.S. That statuteprovides as follows:

In case of vacancy in the office of commissioner, the county judge shall appoint some suitable person living in theprecinct where'such vacancy occurs, to serve as commissioner for such precinct until thenext general election.
TomV.Klepper, 172S.W. 721 (Tex.Civ.App. -ElPaso 1915,writ ref'd), is almost squarely on point. In that case, Tom, who was elected county commissioner in 1912, alleged that the failure tohold a general election in 1914meant that hewas 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, avacancy 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 thisview accordswith 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 yearswould beby sufferance, rather than fromany intrinsic title totheotfice. 172 S.W. at 723. See also Clark V. Worn&l, 65 S.W.2d 350 (Tex. Civ. APP. -Waco 1933,nowrit); 47Tex. 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 toserve theremainder of theunexpired terms. V.T.C.S. art. 2341.

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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 ofTexas
JOHNW. FAINTER, JR. FirstAssistant 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 JimMoellinger BruceYoungblood

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