9 . 

THEA~TORNEYGENERAL 

OFTEXAS 

R-348 

AUSTIN. TEXAS 

May 1, 1947 

Hon. Glenn Capps 

County Attorney 

Mason county 

Mason, Texas 

Dear Sir: 

I 

Opinion.No. V-178 

Re: Authority of the Commissioners’ Court to appoint 

a, Justice of the Peace 

~. .where there was no persen elected to ,the office 

at the last General Election, and related questions. 

. Your request for an opinion from this office is, in part, 

as fellows: 

. 

:, 

“On the 14th day of August, 1914, the Commissioner’s Court of Mason County, Texas, divided 

Mason County into aeven Justice of the Peace ?recincts. For the past fifteen years or more no Justics&the ?eace’has been elected in any Justice of 

the Peace Precinct in Mason County, Texas, except 

Justice l f the Peace Precinct No. One, with office 

in the hwri’of Mason, Texas. At the present time 

the citizens of the Hilda Community in Justice ef 

the Peace Precinct No, Seven, in Mason County, 

Texas, desire to have a Justice of the Peace appointed for that Precinct. They failed to nominate 

a Justice of the ?eace for Precinct No. Seven at 

the Primary Election in 1946, or te elect a Justice 

of the Peace in and for said Precinct No. Seven at 

the General Election in 1946. e .R 

“QUESTIONS 

‘1. Does the fact that no Justice of the Peace 

was nominated or elected at the Primary or General Election held in 1946, nor for several yeaps 

prior thereto in said Justice Precinct constitute a 

vacancy in said office as contemplated by the above 

cited Constitution Article 6, Section 28, and Article 

2555, Vernon’s Annotated Civil Statutes? 

‘2. Would the Commissioners” Court of Mason 

County, Texas, have the constitutional or Statutory 
. . 

Hon. Glenn Capps - Page 2 Opinion No, V-178 

Authority to appoint a Justice of the Peace in said 

Justice of the Peace Precinct No. 7 er ether Precincts in Mason County, where no Justice of the 

Peace was elacted to hold office until the next 

General Electisn? 

“3. Are there any Constitutional er Statutery authority whereby a Justice of the Peace 

could be appointed or elected by special election 

in said Justice. Precinct or the other Justice Precincts in Mason County to hold office until the 

next General Election? 

“4. Could the Legislature by Special Act authorize the Commissioner’s Court of Mason County, 

Texas, to appoint a Justice of the Peace for said 

Precinct to bold office until the next General Election? 

“5. Could the Legislature by Special Act authorize tbe qualified voters in said Justice Precinct 

to call a special election and elect a Justice of the 

Peace to hold office until tho next General Election?. 

Article V, Section 16, Constitution l f Texas, provides in 

part as follows: 

“Each organized county in the State now or hereafter existing, shall be divided from time to time, for 

the convenience of the people, into precincts, not less 

than four and net more than eight. Tha present County Courts shall make the first division. Subsequent 

divisions shall be made by the Commissioner”s Court, 

provided for by this Constitution. In each such prscinct there shall be elected at each biennial election. 

one justice of the peace and one constable, each of 

whom shall hold his office for two years and until his 

successor shall be elected and qualified:. e a? ,(Underscoring ours) 

Article V, Section 28 of our Constitution provides: 

“Vacancies in the office of Judges of the Supreme 

Court, the Court of Criminal Appeals, the Court of 

Civil Appeals and District Courts shall be filled by 

the Governor until the next succeeding general election; and vacancies in the office of County Judge and 

justices of the peace shall be filled by the Commissioners Court until the next general election for such 
Hon. Glenn Capps - Page 3 

offices,” (Underscoring ours) 

Opinion Ne. V-178 

Article 2355, V.C.S., provides: 

“The Court (Commissioners’ Court) shall have 

power to fill vacancies in the office of: County Judge, 

County Clerk, Sheriff, County Attorney, County Treasurer, county Surveyor, County Hide Inspector, Asaessor of Taxes, Collector of Taxes, Justices of the 

Peace, Constables, and County Superintendent of PubliaInstruction. Such vacancies shall be filled by a 

majority vote of the members of said Court, present 

and voting, and the person chosen shall hold office 

until the next general election.’ (Parenthesis and 

underscoring ours) 

Since there was no person nominated for the Justice of the 

Peace, Precinct No. 7, in the primary election in 1946 and there 

was no person elected to said office in the general election in 1946, 

there now exists a vacancy in the office of Justice of the Peace of 

Precinct No. 7, Mason County. See State v. Cocke, 54 Tex. 412; 

Maddox v. York, 54 S. W. 24; 93 Tcx. 275: Dobkins v. State, 19&W. 

2d 914. 

Section 28 of Article V of the Constitution of Texas makes 

it the mandatory duty of the Commishioners’ Court to fill a vacancy 

in the office of Justice of the Peace. Moreover, there is no constitutional or statutory provision authorizing a special election in such 

cases. 

In answer to your first question, therefore, it is our opinion that since no Justice of the Peace was elected at the generalelection in 1946, there exists a vacancy in said office as contemplated by 

Article V, Section 28, of our Constitution and Article 2355, V.C.S. 

In answer to your second question, it is our opinion that the 

Commissioners’ Court of Mason County does have the authority to 

appoint a Justice of the Peace in Precinct No. 7 to hold said office 

until the next general election. 

In answer to your third question, it is our opinion that 

there is no authority for holding an election for the purpose of electing a Justice of the Peace to fill the vacancy that now exists in said 

office. 

In view of our answers to your first three questions, it is 

unnecessary to answer your fourth and fifth questions concerning 

the authority of the Legislature to provide by special act for the 

filling of such vacancy. 
- “. 

Hon. Glenn Capps - Page 4 Opinion No. V-178 

SUMMARY 

There exists a vacancy in the office of Justice 

of the Peace of Precinct No. 7 in Mason County as 

no person was elected to said office in the general 

election in 1946, and said vacancy should be filled 

by the Commissioners” Court of Mason County. Art0 

V, Sec. 28, Const, of Tex.; Art- 2355, V.C.S. 

Yours very truly 

ATTORNEYGENERALOF TEXAS 

Assistant 

JR:djm 

APPROVED MAY 1, 1947 

gi.e/ Qac2G.d 

ATTORNEYGENERALOFTEXAS