Honorable Price Daniel Opinion No. WW-530 

Governor, State of Texas 

Capitol Station Ee: AppoYntment by ,Governor 

Austin, Texas to fill vacancy in the 

office of Dkstrict Judge 

Dear Governor Daniel: 

You request an opinion In answer to the following 

questions: 

"1. Can Judge Joe Brown enter upon the d'uties of 

his office without 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 ,John C, 

HOYO, under the following circumstances: 

"On August 31, 19,57, the same Judge Joe Brown was .appointed by the Governor to this newly created 150th Dl~etTlet 

court. His nomination was 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 elected November 4." 

Your letter further glve.s the information that 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: 

"From and after the effective date hereof 

the terms of office of all elective State 

and District Offlcera of th'e State of,Texas, 

excepting aovernor, Lieutenant Governor, 
Honorable Price Daniel, page 2 (WW-530) 

members of the Senate, and members of the 

House of Representatives, shall begin on 

the first day of January next following the 

General Eleotlon at which sold respective 

State and dlst~at~,offlaer~ were~ elected." 

(emphasis ours). 

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 suoeeedlne January, 

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'Joe Brown to 

serve the .remalnlng portion of the term of office to which he 

was previously appointbd and which appointment was rejected 

by the Senate of Texar. This la forbidden by the Constitution 

of Texas, Article 4, Sebtion"l2, whloh provides as ,follons: 

"All vacancies in State or distrlot offices, 

,except members of the Legislature.. shall be 

filled unless otherwise provided 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 immediately become vacant, and the 'Governor shall, without 

delay, make further nominations, until a confirmation takes place. But should there be 

no ~confirmation during the session of the Senate, 

to fill the vaoanoy until the next session of the 

Senate or uritll the regular election to said office, 

should sooner oaaur. ,:Appointments to vaoancles 

In offices eleotlve by the people shall only oontinue until the -first general election thereafter." 

(Bnphasls ours). 
In that clause of the quoted Const&tutlonitX ArtiaD~ 

rhSch cays, "the (Dovernor till not TRERIwFTEfL appotint~ uylpIzron zo 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 last mentioned;. 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&..r l65 lrpp. Dv, 

573, Iis1 lK~K?i,.,lJ4%, 1 4; Imale v. stat6, 

147 *+. Cr. IL 384, 1 30 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, lnaing tryma 

6mnt M 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, already ps&Q8uZsr%&E 

Xr~tQasla uhfch arc W mentSoned, W fk & 

dasarQttlve and relrhfve word, referrIng, to 

the Lrurt entcaeri-ant.. Strawberry Wll Land 

Corparrtlon v. 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.. 

IX muat 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 persons to 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~ tDz rtlll 

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, 19fi9c The . 

Honorable Joe EWwwn -ot be appoSnt~ed W 

the @avermar tfii ,Pfll the vaarnay nmw ex&8t- 
Honorable Price Daniel, page 4 (WW-530) 

ing in the office to which he was 

his previous appointment by 

elected, 

such office for the present 

refused confirmation by 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