# _., I. e.

**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 
February e8, 1939

**Bonomble** ClaudeA. +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 conteBtloBthemin lade
tterm wblsh (I- not thl8 **departmmt*s** **oplnioa** al 6lootlonoontrstor ln that irkis **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 8tiSloisntto elect him ea his oun auocwssor,ii en wlaotionoauld 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*eappolnt%.ng auotherHonorable 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, 'andhe 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 alarlfyingpositionaa **stated** by Judge Fl~dgea drawa the discussiondown to a single iasua,ahd that ia as to whether
or not by the dot of the LagialatUra, aa amwnded,any'elaotlonto fill the orrioa of.SpaoialDlstriotJudge 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 eleotlvadates to bd supplied by the appointlvapower or the Gevarnor. Stated. anothsrwsy, the logloalaequen6aof Judge Hodges * argument is the) lnasmuohas there

.?a oouldnot have bean a legal wleotionto this oitioe in November: !f 1998, and lnasmuohas Judge.-Meredith*6 term would have expiredJanuary ES, 1939, a,hlatue or raaanoy resulted beginningau oi the ~laat named data, whldh could not be 

### wwro~mw or ~ugpll~d

by the voters until the next general elaotionin @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- .pointivepower 

### dr the Governor was oallwd In to requisitionaa ofHonoreble Claude A. ?.'llllms, Febrtrarg

28, 1939,Page 3

January 26, 1939, notwlthstandlng no such power was granted j,nthe 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 ~aubtsaquaatto 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 authorI2eUto craataby tba parmIb8I+a 'alartsof tha Constitution referred-tolntha **AttOtiOy Ckneral~r**  aaid opinion.,Conwquantly, the Laglalaturaaould not only w when the term of that offloa ahouldbagin but alao how long t&a I i, offioe should oontinueto axl8t. The Laglslatura8paoiiioally ienaotad that the offI should be **an** elaativaone axoapt as to ithe fillingof the raaanoy whioh axiatad4h the curaatlonof the ; $offlee. It IS the duty' or the courts axl of this departmentto
so uonstrue the Aota of thc'Le~isktur6 as to arrive at th5 true ~lntant and purposa'ofamp partlaularlaw, and to @ve affaot tharato,~unl&as it la olearlymade to appaar that som prwi5Ion of the :$onetltutlon

has bean dlsragaraad or that the law is void fQr un- :.~,?ertufnty. r IHonorable 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 positionas adVOMt6d by Judge Fagas : s takenby the Respondantln the oasa of Russell vs. State, + . 1ll~Ind.~

**‘ 625,**  **87** N. **x. 13,**  t&l& ha4 to 

### a0with tha orrioaDottha **Omty Autlitor,**  **whose term**  **began on**  Maroh 28th aooordirrg to thaw Aot’ of LagIalattura whioh oreated It, and by ~hloh tha'tirmof t&a oftIoawas rixad at four year=. In that oasa, the Ralator.was alaotadat the general alaotIon In Novambar,1900, to 8uooaad the Respondantwho wa8 the .+noumbent and whose term, it wie alleged, would have expired**Xedh 28,**  **1908, lhioh**  **was about**  nineteen **nontIm** subsequenkto the Noova&ar, 191)6,.alaotlon.

The Supreme Court of Indianaheld that thw-elaotion so held In the last named year was a valid alaotlon,and renderedati Ouster Judgment against the Respondant, who was holding war :subsequent to Maroh SS, 1908, on the theorythat inasmuchas the LagIalaturahad,.

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 ,oStheir opinion the Court Bald, in part:Honorable Cleude A. Kllllans, Febrmry 28; 1929

*It is settled, snd conceded by the partieshere, 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 :>ersonshsll 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 elaotioaa~daitr~n,nas,... 

### vhilat thsre 

### 15 no natural or vested right ot drreg0, ma it le a polltloalprbvileee md, except aa guardedby the Constitution,it nifty ba link4 or extendedby 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 ecfkotiveto sleot JudgeMwsdith him owu maaesaor, providedeuoh eleotloon~ramauthorlead to be held'then, the answers to your questionewhioh you originallypropoundadare removed from any doubt in the opinion of thin department.

This reply to your request for i review or the Attorney Qexmra1*8opinion has been made as promptlyas then lmportanoeofcn. .: 594 Honmshle ClaudeA* '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