                                ATTORNEY GENERALOFTEXAS
                                             GREG        ABBOTT




                                                  July 12,2004



The Honorable Kurt Sistrunk                                Opinion No. GA-02 16
Galveston County Criminal District Attorney
722 Moody, Suite 300                                      Re: Procedure for filling a vacancy in the office
Galveston, Texas 77550                                    of district clerk (RQ-0165GA)

Dear Mr. Sistrunk:

         You ask about the proper procedure for filling a vacancy in the office of district clerk.’ You
relate that the district clerk of Galveston County serves six district courts. See Request Letter, supru
note 1, at 1. The former clerk announced that she would retire “on or about March 3 1, 2004,”
vacating her office approximately         midway through her term. Id. Section 51.301(b) of the
Government Code describes the procedure for filling a vacancy in the office of district clerk:

                          (b) If a vacancy in the office of          district clerk occurs in a
                  county that has two or more district courts,      the vacancy shall be filled
                  by agreement of the judges of the courts.         If the judges cannot agree
                  on an appointee, they shall certify that fact     to the governor, who shall
                  order a special election to fill the vacancy.

TEX.GOV’T CODEANN. § 51.301(b) (Vernon 1998) (emphasis added). You suggest that “[i]t is
unclear whether the phrase ‘agreement of the judges’ requires a unanimous vote of the district
judges, or whether a majority of the judges may select the new district clerk.” Request Letter, supra
note 1, at 1.

         Because section 51.301(b) is silent on the meaning of the term “agreement” for purposes of
selection of a district clerk, we turn to the common meaning of the term as established in case law.
In GonzaZez v. State, 954 S.W.2d 98 (Tex. App.-San Antonio 1997, no writ), the court said that “[a]n
agreement is a harmonious understanding or an arrangement as between two or more parties, as to
a course of action.” Id. at 104. In Zanone v. RJR Nabisco, Inc., 463 S.E.2d 584 (N.C. App. 1995),
the court stated that “[tlhe word ‘agreement’ implies the parties are all of one mind - all have a
common understanding of the rights and obligations of the others - there has been a meeting of the
minds.” Id. at 587. And in Haynes v. Allen, 482 S.W.2d 85 (MO. App. 1972), the court declared that


          ‘Letter fromHonorable Kurt Sistrunk, Galveston County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Jan. 13,2004) (on file with Opinion Committee, also avaiIabZe at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Kurt Sistrunk            - Page 2           (GA-0216)




“‘agreement’ . . . implies mutuality of consent and forecloses the interpretation . . . that it means
consent or agreement by a number less than all of the partners.” Id. at 88; see also TLZ Props. v.
Kilburn-Young Asset Mgmt. Corp., 937 F. Supp. 1573,1578 (M.D. Fla. 1996), afd, 119 F.3d 10
(11 th Cir. 1997) (“‘agreement’ is defined as a manifestation of mutual assent by two or more legally
competent parties to each other”); In the Matter of Turner, 156 F.3d 713, 718 (7th Cir. 1998)
(“Fundamental to the concept of an agreement is an expression of mutual assent between the two (or
more) parties to that agreement.“); MacCuZZoch v. Caroline Mines, Inc., 145 F. Supp. 421, 424
(W.D.N.C. 1956) (“An agreement is the meeting of minds in a common intention and implies two
or more parties.“).

          This judicial authority, combined with the lack of any language in section 51.301(b)
 suggesting that the term “agreement of the judges” should be read as “agreement of a majority of the
judges,” supports the view that an “agreement” under the statute requires the unanimous assent of
 the six district judges in Galveston County. By contrast, chapter 84 of the Local Government Code
 describes the process for the appointment of a county auditor. Section 84.002 thereof provides that,
 “[i]n a county with a population of 10,200 or more, the district judges shall appoint a county
 auditor.” TEX. LOC. GOV’T CODE ANN. 5 84.002(a) (Vernon Supp. 2004). Section 84.001(b) states
that “[a] majority vote of the district judges is required to perform an act required or permitted of the
 district judges unless the law specifically provides otherwise.” Id. $ 84.001(b) (Vernon 1999).*
 Thus, where the legislature has intended that an appointment made by a group of district judges be
made by a majority vote of those judges, it has explicitly so declared. In the case of a district clerk,
however, the legislature has failed to include any “majority vote” requirement. Its use of the term
 “agreement” in section 51.301(b), without any qualifying language, provides persuasive evidence
that, for purposes of that statute, an “agreement” requires the unanimous assent of all the district
judges. In addition, section 5 1.301(b) prescribes a special procedure if the judges cannot agree on
the selection of a particular individual: they must certify such fact to the governor, who is then
required to order a special election to fill the vacancy.

          We conclude that, for purposes of section 5 1.301(b) of the Government Code, the district
judges of Galveston County must unanimously assent to the appointment of a district clerk. If the
judges cannot agree, they must certify that fact to the governor, who must order a special election
to fill the vacancy.




           *Section 84.005 provides that “[i]n a county with a population of 3.3 million or more, the distict judges shall
hold a meeting for the purpose of appointing a county auditor. For a county auditor to be appointed, a majority of the
district judges must be present at the meeting and a candidate for the office must receive at least a two-thirds vote of the
district judges who are present and voting at the meeting.” TEX. Lot. GOV’T CODE AN-N.0 84.005(a) (Vernon Supp.
2004).
The Honorable Kurt Sistrunk    - Page 3       (GA-0216)




                                       SUMMARY

                       The district judges of Galveston County must unanimously
               assent to the appointment of a district clerk. If the judges cannot
               agree, they must certify that fact to the governor, who is required to
               order a special election to fill the vacancy.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
