Hon. L. A. Wood

State Superintendent Public.Instruction Apstin,.Texas Attention: Hon. T. M. Trimble

Dear Sir: OpinionNo. C-1664 Re: One appointed to the office of County School Superintendent may hold the office until the next general election, irrespective of the length of the unexpired term of his predecessor.
Your letter of November 6, 1939, to Gerald C. Mann, Attorney General of Texas,hasbeen received by this department. Your letter states that Mrs. Guy T. Newton has been appointed to PQl the unexpired term of her deceased,husbandas County Superintendent. You quote from a letter reoeivedby you from &frs. Newton.as followst
"Inmy special case,my husbandts term would have expired January 1, 1943, sinoe this is a four year office and he bad servednot quite one years of his term. I am told that I can hold it until the next general eleotion, but it ssems.tome this souldbe interpreted asmeaning until the next general election for this office,which would occur 

### 4 1942. Which interpretation is correct?"
Your attention is direoted to Article 2688, Revised Civil Statutes of Texas, as follows: "The Commissioners'Court of every countyhaving three thousand scholasticpopulation or more as shownby the preceding scholastic oensus, shall at a general eleot$on provide for the election of a County Superinten,dentto serve for a term of four years, 5fi * 0" Then, we direct your attention to Artiole 2355, Revised Civil Statutes of Texas, as amendedby the Acts of 1927', Fortieth Legislature,wherein the Commissioners8 Court is given the power to fill vacancies,as followsi~ "The court shallhave power to fill vacancies in theHon. L. A. Wood, page 2, O-1664

office of: attorney, county judge,county clerk,sheriff,county

county treasurer,county surveyor, aounty hide inspeotor,assessor of taxes, collector of taxes, justicesof the peace, oonstablesand county superintendent of Public Instruotion. Suohvacancies shall be filledby a majority of the members of said court, present and voting, and the person ohoosen shallhold office until thenext general eleation." (Underscoring ours)

. You will note that the above statutoryprovision,Article 2355, applies to the filling of vaoancies in county offices. Whereas, Article 4, Seotion 12 of the Constitutionof Texas applies to the filling of vacancies in~state and district offioesby appointment of the Governor, as follows: "All vacanoies in state or district officesp except members of the Legislature, shall be filled unless otherwiseprovided by law, by appointment of the Governor,which appointment, if made during its Session, shall be with the advice and consent of two-thirdsof the Senatepresent. If made during the recess of the Senate, the said appointee, or some other person to fill such vacancy, shall benominated to the Senate during the first ten days of its Sessia. If rejected, said office shall immediatelybeoome vacant,.and the Governor shall without delay,make furthernominalions, until a confirmation takes place. But should therebe no confirmationduring the Session of the Senate, the Governor shall not thereafter appoint any person to fill such vacancy who has been rejectedby the Senate;but may appoint some other person to fill the vacancyuntil the Session or until the Regular Session to said offiae, should it sooner occur. Appointments to vacancies in offices elected by the people shall only continueunt 1 the first general election thereafter." (Underscor xi+ g ours.). Prior to 1931, the office of county school superintendent was for a term of two years. Sinae 1931, the offioe of county school superintendenthas been for a term of four years. The other oounty offioes enumerated inArticle 2355 are for terms of two years. There are numerous distriot and state offices for longer terms than two years, and irrespeative of the length of the unexpired term of the appointeers predecessor, the appointeemay onlyhold office until the next general election. There baa been no judioial oonstruotion of Article 2355, aforesaid,as to the office of county school superintendent. However, the language is clear and isnotHon. L. A. Wood, page 3, O-1664

subject to a contrary constructionthan that the appointeemust be up for election,and that the offioe is open to election at the next general election, and that the term of the appointee~$11 expire on Jsnuary 1st following thenext general eleotion.That is,where an elective office is vaoant and is filled by appointment of the Governor or Comaissioners~Court, suoh appointivepower is only a matter of expediency in that the will and power of the peoplewill prevail to name the incumbentat the next general election. Believing this to answer your inquiry,we are

Yours very truly
ATTORNEY GRRRRAL QF TRXAS s/ Pat Coon

Pat Coon Assistant
PC:ob/og

APPROVEDNOV. 17, 1939 s/ Gerald C. Mann ATTORnEY GBiRRAL OF TEXAS

APPROVRD OpinionCommittee By BWB, Chairmen