_., I.

e. 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

February e8, 1939 

Bonomble Claude A. +llllama 

Aesietant Seorstsry of State 

Awtin, Texas 

Dur&.WllliamBt 

f hBW 61V6Q OWOfUl 00 

17tkin8tlqtm~rdl~ tha ab0 well aa to tra oplalon 

and the l ~leuaentaL ap&lo.oru Eodgw, ai& wore 

conteBtloB themin lade 

tterm wblsh (I- not 

thl8 departmmt*s oplnioa 

al 6lootlon oontrst or ln 

that irk is not naoe88BrJ, or 

*n6ral glv* an oplnlon. 

@ aupplamontal oplnlon, of data January 

the *write %xP votes ior fudip 8iemdith 

at the genarll on held in Bovomber, 1938, *are 8tiSloisnt to 

elect him ea his oun auocwssor, ii en wlaotion oauld legally have 

been held to fill that offfoe at that BFaas. It la Sub@ Hod&~8 

conclusion, homver, that neXthwr lpr. Umwdltb nor aW otkir Par800. oould have been wleotetd at that sleitfon, 4kna that a raeanoj 

neoersuarily ooourrad in tbet oftiae sfter JaaB&y BS, 1939, whfoh 

veaancy could only Be flllsa by the Gorarnor*e appolnt%.ng auother 
Honorable Claude A. 4lllisms, February 28, 1939, Page 2 

qualified person as successor to Judge Meredith. 

In passing, I wish to say that I have always had great 

respect for Judbe Hodges* opinion . on any leL*al subject, 'and he has 

certainly well argued this question as viewed from the position 

assumed by him. Nevertheless, I am oonatralned to differ with him 

and to adhere to the ooaolusion reached in the Attorney General's 

aaid opinion. 

TM alarlfying position aa stated by Judge Fl~dgea drawa 

the discussion down to a single iasua, ahd that ia as to whether 

or not by the dot of the LagialatUra, aa amwnded, any'elaotlon to 

fill the orrioa of.Spaoial Dlstriot Judge 6f Gregg Gounty oopld 

be Chad, eroept the elaotlon nhlah wee held in November, lW6 and 

#a elaotion to be held in November, 1940, thereby leaving the vaoaiky thus oraatad betrrden thaee two eleotlva dates to bd supplied 

by the appointlva power or the Gevarnor. Stated. anothsr wsy, the 

logloal aequen6a of Judge Hodges * argument is the) lnasmuoh as there 

.?a 

oould not have bean a legal wleotion to this oitioe in November: !f 

1998, and lnasmuoh as Judge.-Meredith*6 term would have expired January ES, 1939, a,hlatue or raaanoy resulted beginning au oi the 

~laat named data, whldh could not be wwro~mw or ~ugpll~d by the 

voters until the next general elaotion in @ovember, 1040~ that thla 

?~ 

oonaltlon was brought about $f' tha Act of the ugialat=w in amending Seotion 8 of the original law; and that to obviate auah a 

vaoanoy so tar as the lnoumbwnoy of the oifioa is conoemwd the ap- 

.pointive power dr the Governor was oallwd In to requisition aa of 
Honoreble Claude A. ?.'llllms, Febrtrarg 28, 1939, Page 3 

January 26, 1939, notwlthstandlng no such power was granted j,n the 

orlcinal bet or by the x+ords of the aald amendment. 

The amendment in question is very carefully drawn, and 

except as to its date, should be oonaidwrea as if it were contained in the orl&xO bill. It is believed that tbe correct meaning 

of that a%etizent wca stated in tbe httorney General*8 said oplnIon, and it is not nadaaaury to repaat it. Sea, also, Taxu JnrI+ 

: 

prudanaa, Volume 39, paga US, 8aotlon 64. 

The time for tB baglnning & tfe tann of this &floe 

was ilml by the L@glrlatura, aa they haa a rieht to io, at a data 

~aubtsaquaat to January 1st. Thl8 offI aa oraatad ID, l triotly 

tap~alclng, not a oonatlt&lonal offlop, but it la amah~an offloo 

is $be Le6lslatura was authorI2eU to craata by tba parmIb8I+a 

'alarts of tha Constitution referred -to lntha AttOtiOy Ckneral~r 

aaid opinion., Conwquantly, the Laglalatura aould not only w 

when the term of that offloa ahould bagin but alao how long t&a 

I 

i, offioe should oontinue to axl8t. The Laglslatura 8paoiiioally 

i enaotad that the offI should be an elaativa one axoapt as to 

i the filling of the raaanoy whioh axiatad 4h the curaatlon of the 

; 

$ offlee. 

It IS the duty' or the courts axl of this department to 

so uonstrue the Aota of thc'Le~isktur6 as to arrive at th5 true 

~lntant and purposa'of amp partlaular law, and to @ve affaot tharato,~unl&as it la olearly made to appaar that som prwi5Ion of the 

:$onetltutlon has bean dlsragaraad or that the law is void fQr un- 

:.~,?ertufnty. 

r I 
Honorable Claude A. iir‘llllsms, February 28, 1939, Page 4 

This office, therefore, by the terms of the Aot which 

created It, being an elective one, the Legislative Act should not 

be so COnstNed as to read into the law a hiatus or vacancy with 

respect to the successive terms which would have effect of m&lng 

the office both an elective office end an appointlva office, unlass the words of the Aot,do not admit of any other reasonable 

Subs&ntlally the same position as adVOMt6d by Judge 

Fagas : s taken by the Respondant ln the oasa of Russell vs. State, 

+ . 

1ll~Ind.~ ‘625, 87 N. x. 13, t&l& ha4 to a0 with tha orrioa Dot tha 

Omty Autlitor, whose term began on Maroh 28th aooordirrg to thaw 

Aot’ of LagIalattura whioh oreated It, and by ~hloh tha'tirm of t&a 

oftIoa was rixad at four year=. In that oasa, the Ralator.was 

alaotad at the general alaotIon In Novambar, 1900, to 8uooaad the 

Respondant who wa8 the .+noumbent and whose term, it wie alleged, 

would have expired Xedh 28, 1908, lhioh was about nineteen nontIm 

subsequenk to the Noova&ar, 191)6,.alaotlon. 

The Supreme Court of Indiana held that thw-elaotion so 

held In the last named year was a valid alaotlon, and rendered ati 

Ouster Judgment against the Respondant, who was holding war :subsequent to Maroh SS, 1908, on the theorythat inasmuch as the LagIalatura had,. by..general law, fixed January 1st as the beginning 

of the suaoesB\Ive terms in the offloe, he was eleotad to hold tha 

orriaa until January 1, low 

In the &Ursa ,oS their opinion the Court Bald, in part: 
Honorable Cleude A. Kllllans, Febrmry 28; 1929 

*It is settled, snd conceded by the parties here, that 

the LeCisIature my fix the comenceffient of the tern: of 

ofilce. wlthln the constitutional restrictions.....T%e terlo 

or office retcrs to the office itsex, end not to tk ino-bent, end Is not ??i&mrvnried by ch.an&gxTte 

when a :>erson shsll be elected to till suoh office....... 

Whether the wters are entitled to fill an ofrice at 

h&sad of the eleotlve, a gOodWt Of the tl.me...:.. 

*The right to rix th+ oo&noemt3at or the term and the 

i” rluht to d'eny an elaotioa a~daitr~n,nas,... 

vhilat thsre 15 no natural or vested right ot drreg0, 

ma it le a polltloal prbvileee md, except aa guarded by 

the Constitution, it nifty ba link4 or extended by statute, 

we think that it Is herr gtmrded by tha Con<utlon, rhloh. 

provldml the length ot the term, and by tbo Ckmti$ution and 

general statute, uhloh rims the tlma rak .gamral eleotloa. 

Theyawtbe om8lueredGogdher,ana, beings0 ocinaklozwd, 

the tmu tina the tims. ror ohoorlna the orsioer are both fixed. 

Ir.lt be oonoeded, therefore, as Judge Eiedgor ha8 OQLoddad, that the eleotion In November, 1938, ues ecfkotive to sleot 

Judge Mwsdith him owu maaesaor, provided euoh eleotloon~ram authorlead to be held'then, the answers to your questione whioh you originally propoundad are removed from any doubt in the opinion of thin 

department. 

This reply to your request for i review or the Attorney 

Qexmra1*8 opinion has been made as promptly as then lmportanoe of 
cn. 

.: 

594 

Honmshle Claude A* 'A'illiams, labNary 28, lQ39, Page 6 

the question and the Otkr duties imposed upon the writer would 

permit. 

‘fours very truly 

Wr F. bore 

Flmt Ibdatant