The Attorney General of Texas 

October 7, 1981 

Honorable Bill M. Reimer 

Coma1 County Attorney 

Room 112, Courthouse 

New Braunfels, Texas 18130 

Opinion No. m-374 

Re: Authority to call special 

election for commissioner's 

court when regular elections 

were enjoined. 

Dear Mr. Reimer: 

Article XVI, section 65 of the Texas Constitution provides that 

county commissioners are to be elected for staggered terms of four 

years. Prior to the last general election in Coma1 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 in precincts 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 plan was 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 in office. 

Dollinger V. Jefferson County Conmissioners Court, 335 F.Supp. 

340 (E.D.T~x. 19711, holds that a cormnissioners court has no authority 

to call elections in any manner other than as provided in Texas law. 

Regular elections must therefore be held at the times specified in the 

constitution and statutes, and special elections may only be called 

for the purposes and under the circumstances spelled out therein. We 

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Bill M. Reimer - Page 2 (Mw-374) 

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 fill vacancy 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 to point out that under Texas law, a 

vacancy now exists in the precincts in question within the meaning of 

article 2341, V.T.C.S. That statute provides as follows: 

In case of vacancy in the office of 

commissioner, 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 general election. 

Tom V. Klepper, 172 S.W. 721 (Tex. Civ. App. - El Paso 1915, writ 

ref'd), is almost squarely on point. In that case, Tom, who was 

elected county commissioner in 1912, alleged that the failure to hold 

a general election in 1914 meant that he was 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, a vacancy 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 this view accords with 

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 

years would be by sufferance, rather than from any 

intrinsic title to the otfice. 

172 S.W. at 723. See also Clark V. Worn&l, 65 S.W.2d 350 (Tex. Civ. 

APP. - Waco 1933, no writ); 47 Tex. 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 to serve the remainder of the unexpired terms. V.T.C.S. 

art. 2341. 

p. 1260 
Bill M. Reimer - Page 3 (MW-374) 

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 of Texas 

JOHN W. FAINTER, JR. 

First Assistant 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 

Jim Moellinger 

Bruce Youngblood 

P. 1261