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## THEA~TORNEYGENERAL OFTEXAS R-348

AUSTIN. TEXAS May 1, 1947
Hon. Glenn Capps CountyAttorney 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, inpart, as fellows:

.

:, “On the 14thday ofAugust, 1914, the Commissioner’s Court of Mason County, Texas, divided Mason County into aevenJustice of the Peace ?recincts. For the past fifteen years or more noJustics&the ?eace’has **been** elected in anyJustice of the Peace Precinct in Mason County, Texas, except Justice l

fthe Peace Precinct No. One, with office in the hwri’of Mason, Texas. At the present time the citizens of the Hilda Community inJustice ef the Peace Precinct No, Seven, in Mason County, Texas, desire to have aJustice of the Peace appointed for that Precinct. They failed to nominate aJustice of the ?eace for Precinct No. Seven at the Primary Election in 1946, or te elect aJustice ofthe Peace in andfor said Precinct No. Seven at the General Election in 1946. e.R “QUESTIONS

‘1. Does the fact that noJustice ofthe Peace was nominated orelected at the Primary or General Election held in 1946, nor for several yeaps prior thereto in saidJustice Precinct constitute a vacancy in said office as contemplated by the above cited Constitution Article 6, Section 28, andArticle 2555, Vernon’s Annotated Civil Statutes?

‘2. Would the Commissioners” Court ofMason County, Texas, have the constitutional or Statutory. .

Hon. Glenn Capps - Page 2 Opinion No, V-178
Authority to appoint aJustice of the 

### Peace in said Justice of the Peace Precinct No. 7 er ether Precincts in Mason County, where noJustice ofthe Peace was elacted to hold office until the next General Electisn?

“3. **Are** there any Constitutional er Statutery authority whereby aJustice of the Peace could be appointed or elected by special election in said Justice. Precinct or the other Justice Precincts inMason County to hold office until the next General Election?

“4. Could the Legislature **by** Special Act authorize the Commissioner’s Court ofMason County, Texas, to appoint aJustice 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 andelect aJustice ofthe 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 ofthe people, into precincts, not less thanfour and net more thaneight. Tha present County Courts shall make the first division. Subsequent divisions shall be made by the Commissioner”s Court, provided for by this Constitution. Ineach such prscinct there shall be elected at each biennial election. onejustice of the peace 

### andone constable, 

### each **of** whom shall hold his office for two

### yearsanduntil his successor shall be elected **and** qualified:. ea?,(Underscoring ours) Article V, Section 28 of our Constitution provides: “Vacancies in the office ofJudges of the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals andDistrict Courts shall be filled by the Governor until the next succeeding general election; andvacancies in the office of CountyJudge and justices of the peace shall **be** filled by the Commissioners Court until the next general election for suchHon. 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: CountyJudge, County Clerk, Sheriff, CountyAttorney, 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 andvoting, andthe person chosen shall hold office until the next general election.’ (Parenthesis and underscoring ours) Since there was no person nominated for theJustice of the Peace, Precinct No. 7, in the primary election in 1946 and there **was** no person elected to said office inthe general election in 1946, there now exists a vacancy in the office ofJustice 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 ofArticle V of the Constitution of Texas makes it the mandatory duty of the Commishioners’ Court to fill a vacancy in the office ofJustice of the Peace. Moreover, there is **no** constitutional or statutory provision authorizing a special election in such cases. In answer toyour first question, therefore, it is our opinion that since noJustice 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 andArticle 2355, V.C.S.

In answer to your second question, it is our opinion that the Commissioners’ Court ofMason County does have the authority to appoint aJustice of the Peace in Precinct No. 7to hold said office until the next general election.

Inanswer to your third question, it is our opinion that there is no authority for holding an election for the purpose of electing aJustice of the Peace to fill the vacancy thatnow exists in said office. Inview of our answers toyour first three questions, it is unnecessary to answer your fourth andfifth questions concerning the authority of the Legislature to provide by special act for the filling of such vacancy.- “

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

SUMMARY There exists a vacancy in the office ofJustice ofthe Peace of Precinct No. 7 inMason 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 ofMason 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