Honorable Price Daniel OpinionNo. WW-530

Governor, State of Texas Capitol Station Ee: AppoYntmentby ,Governor Austin, Texas to fill vacancy in the office of Dkstrict Judge Dear GovernorDaniel: You request an opinion In answer to the following questions: "1. Can Judge Joe Brown enter upon the d'utiesof his officewithout appolntment by the Governor,prior ~to January 1, 1958? "2. Is the Governor ,authorized to appoint Judge Brown to fill out the unexpired term of Judge ,JohnC, HOYO, under the following circumstances: "OnAugust 31, 19,57, the same Judge Joe Brownwas .appointed by the Governor to this newly created 150th Dl~etTlet court. His nominationwas submitted to the Senate in Oct. 17, 1957, and he was not confirmed. Thereafter the Governor appolnted John C. Hoyo to fill the office. Judge Hoyo dLd not seek election to the full term. Joe Brown was the only candidate for the place and he was nominated In the Democratic Primary and electedNovember 4." Your letter further glve.s the informationthat Judge Hoyo has become deceased, and that by reason of his death, there is now no Incumbent of said 0ffic.e,of Distri.ct

Jud~ge. Our answer to yuur First Question 18 that Judge Brown cannot, by virtue .of his election the office to which he was elected,prior t,o January 1, 1959. , snter upon the duties of

The Election Code, Art.,1.08, is as foll.ows: "Fromand after the effectivedate hereof the terms of office of all elective State and District Offlcera of th'eState of,Texas, exceptingaovernor, Lieutenant Governor,Honorable Price Daniel, page 2 (WW-530)

members of the Senate, and members of the House of Representatives, shallbegin on the first day of January next following the General Eleotlon at which sold respective State and dlst~at~,offlaer~ were~elected." (emphasisours). And In the case of Rxparte Sanders1 147 Tex. 248, 215 S.W. 26 325 (1948),The Sufieme' Court f T things, that,

a person eleoted go the,offltie of dietriot judge,.;. exas held, among,other
In the November generals eleotlon could not by virtue of his ~ .I: said electlop, asewne ;me dutiesof that office until the first of the suoeeedlneJanuary, We argthus oompelled,both by the applicable.statute and by the decision of the Supreme Court, to answer the question in the negative. The answer to the,seoond questlon'is that the ffovernor of Texas, is not authorized to appoint Judge'JoeBrown to serve the .remalnlng portion of the term of office to which he was previously appointbd and which appointmentwas rejected by the Senate of Texar. This la forbiddenby the Constitution of Texas, Article 4, Sebtion"l2,whloh provides as ,follons: "Allvacancies in State or distrlot offices, ,exceptmembers of the Legislature.. shall be filled unless otherwiseprovided by law, by @ppoiritment

of the Governor,whlch'appolntment, if made during Its seaslon shall be with the advice and lon,eetit of two-thirds of the Senate present, the!said appointee, or some other person to fill sucn vaoancy, shall be nominated to the Senate during the first ten days of Its session. If rejected, said office shall immediatelybecome vacant, and the 'Governorshall,without delay, make furthernominations,until a confirmation takesplace. But should there be no~confirmationduring the session of the Senate,

to fill the vaoanoyuntil the next session of the Senate or uritllthe regular election to said office, should sooner oaaur.,:Appointmentsto vaoancles In offices eleotlve by the people shall only oontinue until the-firstgeneral election thereafter." (Bnphaslsours).In that clause of the quoted Const&tutlonitX ArtiaD~ rhSch cays, "the (Dovernor till not TRERIwFTEfL appotint~

uylpIzronzo ff.l.lsWa~~~ who hu been rejected, $F t+ mte:: t,- wo* tm~ ear"a?pri "M"i -. w#q want. Mr..

Black,.In l@e a*hortta$Fve *; m;c+X F@urth Edftfon, glves"the &Xlow%ng as w Ie&W of "thsraaftir"

r "After the time lastmentioned;. after th&t after that timer'

aftei?ward~subsequestig;. ChenaMorth. Faople v* st. LalGLe+ p.(k T3.B; CO., 3w Ill. sdli&lJb:,H.l& z17; lisilmutta

v.. ~tle@U38nty & sm c&..rl65 lrpp. Dv, 573, Iis1lK~K?i,.,lJ4%, 1 4; Imale v. stat6, 147 *+. Cr. IL 384, 130 LW. 2d gie5,. gci?T*."

m 8&e sts+hm di8fS.n8s "euch~" e8 ms+nfn@ "Of t&t Bfnd, Igving partl.cuLar quality or charaofer speciEted. **In** re **Brock,** 312 Ft, sbz, ,' 166 L 785~~ 7%T, Imtlcol with, lnaingtryma 6mntM what hrrrbeenmentioned.. &I re m.tar3es W!lIl,1114 W&K?. 213,*.

25% F..Yd!,.

7% AUka, altilar, of the like kind; V~~h' mneents the objectr~ an,alreadyps&Q8uZsr%&E Xr~tQasla

uhfch arc W mentSoned, W fk & dasarQttlve and relrhfve word, referrIng, to the Lrurt

entcaeri-ant..

StrawberryWll Land Corparrtlonv. Starbu&, 124, Va..73, 97 SAL **362,.** 366; &3OmQ cx reL lEEllp v., l!&lSc. sem.u8 ccallml8Rsan,. Iyl kpp.~ mr,m%a,, rnfj7F B,Y..S,' 703,, mi.*" The above set 0u-t Artlale of the C@nstZtution Tf p&%X.. IXmuat be conatirued to mean what it says* a& to s+g~ w&H it means. It eaya and meana~t&at when the Oovernor apg.&.nti some personsto ill1 e va.cancy in the t~ez?m

of'en offZ@xv

snd~ the, appointee ie refused aonflrnation@ chc SenaW,. tiaa Qavernor cannot again *poZmt the rej+cWd a4ppa&nt~ tDzrtlll **at&d** temn **a~? ’** **any w-**  **Mtts~I~ simlms**  The EcmorabLe Jae Bruwn cannot by virtue SS his election to,the office at the last gene- election enter upon the duties of his office prior to &nuary 1, 19fi9cThe

. Honorable Joe EWwwn -ot be appoSnt~ed W the @avermar tfii

,Pfllthe vaarnay nmw ex&8t-Honorable PriceDaniel, page 4 (WW-530)

ing in the office to which he was his previous appointmentby elected, such office for the present refused confirmationby the the Governor to term having been Senate of Texas.

Youra

As,s?stant

Attorney General APPROVED: OPINION COMMITTEE Riley Eugene Fletcher, Chairman Marietta McGregor Payne Cecil Cammack Morgan Nesbltt
REVIEWED FOR THE ATTORNEY GENERAL: By: W. V. Geppert