.   .




        Honorable William Hunter              Opinion No. C-415
        District Attorney
        69th Judicial District                Re:   Rxistence of a va-
        Dalhart, Texas                              cancy In the office
                                                    of County Attorney of
                                                    Sherman County, under
        Dear Sir:                                   the stated facts.

                  In order.that the question presented and the conten-
        tions of the interested parties may be fully understood, we deem
        it desirable to quote in full your letter requesting an opinion
        of this office, as follows:

                 "I would appreciate an opinion as to the
            following question: Whether the Commissioners
            Court of Sherman County, Texas, may declare the
            office of County Attorney of Sherman County,
            vacant and appoint a person to fill the vacancy
            under the following state of facts.

                 "In November, during the election in
            Sherman County, the incumbent for the office of
            County Attorney had his name on the ballot. When
            the votes were counted, another person by write-
            in vote had received a majority of the votes for
            that office. The person receiving the majority
            of the votes for that office, at the time of the
            election, was not qualified to hold the office
            of County Attorney, in that he had taken his bar
            exam, but such bar exam had not been graded and
            he had not been admitted to the bar. He was ad-
            mitted to the bar before January 1, 1965.

                  "After the election, the person receiving
             a majority of the votesi Dyess, brought a
             mandamus action against the members of the Com-
                                   ..,.
                                   -1953-
Honorable William Hunter, page 2 (C-415)


    missioners Court joining the incumbent, Coons,
    as defendant also. In such action, Dyess sought
    the office alleging that he was eligible to the
    office of County Attorney and had been declared
    the winner in such election and alternatively
    alleging that.the office of County Attorney
    should be declared vacant for the reason that
    no eligible candidate received a majority or
    plurality of the votes cast. A hearing was
    thereafter held and the court determined that
    no eligible candidate received a majority or
    plurality of the votes cast for said office in
    said general election. There was not a deter-
    mination by the court that the office was vacant
    as of January 1, 1965. Such judgment is now a
    final judgment.

         "The ConnnissionersCourt is now attempting
    to determine whether the incumbent holds over
    and continues in the office of County Attorney or
    whether the Commissioners Court has the authority
    to declare or recognize a vacancy in the office
    and in turn appoint a person to hold the office of
    County Attorney.

          "On one hand it is argued that under Section
     17 of Article 16 of the Constitution of Texas, all
     officers within this State shall continue to perform
     the duties of their office until their successor
     shall be duly qualified. Section 24 of Article 5 of
     the Constitution provides for the removal of an
     officer including County Attorney by the District
     Court upon a finding of a jury and there are numerous
     cases to the same effect. See Hamilton v. King, Tex.
     Civ. App., 206 SW 953, Childress County vs. Sachse,
     Civ. App.,310 SW 2d 414. It is therefore argued that
     the proceedings filed by Dyess did not determine that
     there was a vacancy in the office and the Commissioners
     Court can not determine that there was a vacancy and
     can not appoint someone to fill the office.

          "It is also contended that because the Court
     in the mandamus action abwe mentioned refused to
     declare that a vacancy in the office of County

                            -1954-
.   -




        Honorable William Hunter, page 3 (C-415)


            Attorney would exist as of January 1, 1965, as
            prayed for by Dyess in his petition, the matter is
            now res judicata regardless of whether or not such
            holding was erroneous. Long v. Chapman, Tex. Civ. App.,
            151 SW 2d 079 (no writ history): Hunt v. Wichita County
            Water Improvement District No. 2, Tex. Civ. App., 213
            SW 2d 343 (error refused) N. R. E.

                 "In Childress County v. Sachse, Tex. Civ:App.,
            310 SW 2d 414, the court said:

                 "'Where the State Constitution prescribes
                 the manner of removing a public official,
                 neither the Legislature, Rxecutive officers
                 nor the Judiciary can act beyond the limita-
                 tions of the Constitution. Travlers' Ins. Co.
                 v. Marshall, 124 Tex. 45, 76 S.W. 26 1007.'

                 "On the other hand, Dyess contends that since
            no person was elected to the office of County
            Attorney, and the term of office of the incumbent
            has expired, a constructive vacancy exists which
            the ConnnissionersCourt may fill by appointment.
            Tom v. Klepper, 172 SW 721, (Tex. Civ. App. 1915,
            error ref.): Denison v. State, 61 SW 2d lo,17
            (Tex. Civ..App. 1913, error ref.);  Clark v. Wornell,
            65 SW 2d 351, (Tex. ,Civ.App. 1933, no writ hist.):
            Maddox v. York, 54 SW 24, (Tex. Civ. App. 1899,
            affirmed 55 SW 1133). The fact that an incumbent
            is filling an office as a hold-over, so that there
            is not a physical vacancy in the office, does not
            prevent there being a constructive vacancy in the
            sense that the appointing power may proceed to
            fill the vacancy by choosing a successor. State
            v. Cocke, 54 Tex. 482, (1881); Attorney General's
            Opinion WW-529 (1958)r Attorney General's Opinion
            WW-541, (1959). Where a vacancy exists, it is not
            essential that there be a judgment of the District
            Court declaring that a vacancy exists before the
            Commissioners Court cx act.    Ehlinger v. Rankin,
            29 SW 240, (Tex. Civ. App. 1895, no writ history);
            34 Tex. Jur., Publi:-:
                                 Officers sec. 33. A vacancy
            in an office is created, in the sense that a person
            may be chosen to fill it, by the expiration of

                                    -1955-
                                                                 .   .




Honorable William Hunter, Page 4 (C-415)


     the incumbent's term.  Clark v. Wornell, supra:
     Denison v. State, supra.

          "I would appreciate an opinion as to the above
     question."

          The first matter to dispose of is whether the ques-
tion of existence of a vacancy was adjudicated in the mandamus
suit and is now res judicata. The petition for mandamus prayed
that the defendants "be ordered to canvass all votes cast in-
cluding the write-in votes and to declare Plaintiff as winner
for the office of County Attorney of Sherman County or in the
alternative that the office be declared vacant on January 1,
1965, and that mandamus issue to this effect."

          The judgment as prepared by plaintiff's attorney and
as presented to the court contained a provision commanding the
defendants to declare the office vacant as of January 1, 1965,
but the Judge deleted this provision by lining'it out before
he signed the order. As signed and entered, the order of the
court reads as follows:

         u * * * IT IS ACCORDINGLY ORDERED, ADJlJDGDD
    AND DECaEEllthat a peremptory writ of mandamus
    issue directing and commanding the Defendants to
    forthwith proceed with all reasonable dispatch
    to canvass all votes cast, including the write-in
    votes, for the office of County Attorney at the
    general election held November 3, 1964, in Sherman
    County, Texas, and declare ~~e-e8~iee-vaea~~-as-e~
    3amva4iy-~,-a965T-~~-~e-4eaeeR that no eligible
    candidate received a majority or plurality of the
    votes cast for said office in said general election:
    * * *,,I

          Long v. Chapman, 151 S.W.2d 879 (Tex.Civ.App. 19411,
and Hunt v. Wichita County Water Improvement District No. 2.
213 S.W.2d 343 (Tex.Civ.App. 1948, error ref. n-r.@.), cited
in support of the contention that the matter is now res judicata,
state the rule that "when a court acquires jurisdiction of the
parties and subject matter and enters a judgment that is per-
mitted to become final, it will be deemed that all issues plead
and proved, as well as those which could have been properly plead
and proved, have been adjudicated." This rule states a presump-

                            -1956-
Honorable William Hunter, page 5 (C-415)


tion that the matter has been adjudicated, but this presump-
tion is subject to rebuttal: and parol ,evidencemay be received
in rebuttal insofar as it does not tend to contradict the
record. Cook v. Burnley, 45 Tex. 97 (1876): Freeman v.
McAninch, 87 Tex. 132, 27 S.W. 97 (1894): 34 Tex.Jur.2d 668,
Judgments, 8 559.

          The Judge presiding in the mandamus action wrote a
letter to the CormnissionersCourt of Sherman County, some time
after the judgment was rendered, in which he stated that he had
been quoted as saying that a vacancy would exist as of January
1, 1965, a~ndthat he felt compelled "to set the record straight
and to forestall any confusion which might arise,in your court
by reason of my being so quoted." The Judge then stated the
reasons why he struck from the judgment the recitation which
would have declared the office vacant as of January 1, 1965.
He cited Article 16, Section 17 of the Texas Constitution,
which provides that "all officers within the state shall con-
tinue to perform the duties of their offices until their suc-
cessors shall be qualified," and cited additionally Article 5,
Section 24 of the Constitution, with this,comment:

          "Art. 5, pp. Big   24, provides for the manner
     in which county officers ' * * * may be removed by
     the Judges of the District Courts * * * upon the
     cause therefor being set forth in writing, and the
     findinq of its truth bv a iury.' Hence a District
     Judge isnot empowered to declare a vacancy in a
     county office until that question has first been
     decided by a jury. No request was made by either
     of the parties in the above styled case for a jury
     determination of the question of a vacancy in the
     office of county attorney of Sherman County."

This latter explanation shows that the court made no determina-
tion on the merits as to the existence of a vacancy, and hence
the question is not res judicata. Foster v. Wells, 4 Tex. 101
(1849): Cook v. Burnlev, supra; 34 Tex.Jur.2d 524, Judgments,
8 473. We believe the court was mistaken in treating this
matter as one involving removal of a public officer under Article
5, Section 24 of the Constitution, but the correctness of the
basis for the court's refusal to rule on the question is un-
important to the issue of res judicata.

                            _.
                            -1957-
Honorable William Hunter, Page 6 (C415)


          The votes cast for an ineligible candidate in the
~generalelection must be taken into account in order to deter-
mine whether his opponent has received a plurality of the votes
cast, which is required for election. Ramsey v. Dunlop, 146
Tex. 196, ~205S.W.2d 979 (1947). Clearly, the incumbent Coons
was not re-elected to the office of County Attorney, and his
only right to the office after January 1, 1965, was as a hold-
over under the provisions of Article 16, Section 17 of the
Constitution. As previously stated, this section provides that
officers shall continue to perform the duties of their offices
until their successors shall be duly qualified. The status of
a hold-over officer was fully considered in Attorney General's
Opinion No. WW-529 (19581, in which it was said:

         "An officer, whether elected or appointed, is
    entitled to continue in office until his successor
    qualifies. Hamilton v. State, 40 Tex.Crim. 464,
    51 S.W. 217 (1899); Bc parte Sanders, 147 Tex. 248,
    215 S.W.2d 325 (1948): 34 Tex. Jur., Public Officers,
    § 31. However,,the fact that an incumbent is filling
    an office as a hold-over, so that there is not a
    physical vacancy in the office, does not prevent there
    being a constructive vacancy in the sense that the
    appointing power may proceed to fill the vacancy by
    choosing a successor. State v. Cocke, 54 Tex. 482
    (1881). The purpose of the hold-over provision is to
    prevent an interruption in governmental functions and
    not to confer on the hold-over officer any additional
    claim to the office as a matter of right. 'The pri-
    mary object of this provision, that the incumbent is
    entitled to hold the office until his successor is
    elected or qualified, is simply to prevent, on grounds
    of public necessity, a vacancy in fact in office until
    the newly elected or appointed officer can have a
    reasonable time within which to qualify. The right of
    the officer who thus holds over is by sufferance, rather
    than from any intrinsic title to the office.' State v.
    Cocke, supra.
          11* * *

          * * * * It is also clear that a person other than
     the incumbent may be appointed, at the proper time, to
     fill a vacancy in a succeeding full term where no one has
                                -.
                            -1958-
Honorable William Hunter, @age 7 (C-415)


    been elected to that term or where the elected successor
    to the full term fails to qualify or dies or resigns
    before qualifying or assuming the office, even though
    there is an elected or appointed incumbent who is under
    a duty to hold over until a successor qualifies and
    who is willing to continue in the office. Dobkins v.
    State ex rel. Reece, supra 49 S.W.2d 574 (Tex.Clv.App.
    1929g; State v. Cocke, supra; Maddox v. York. 54 S.W.
    24 (Tex.Civ.App. 1899, affirmed 93 Tex. 275, 55 S.W.
    1133): Tom v. Rleprjer,172 S.W. 721 (Tex.Civ.App. 1915,
    error ref.)."

          The remaining question is whether the existence of the
vacancy must be declared by a district court before the,commis-
sioners court is authorized to appoint someone to fill it. The
procedure required by Article 5, Section 24 of the Constitution
applies to removal of a county officer during the term for which
he was elected or appointed. Hamilton v. King, 266 S.W. 953
(Tex.Civ.App. 1918), cited in your letter, involved the authority
of the connnissionerscourt to declare in September, 1918, that
the office of county attorney was vacant because of absence of
the elected county attorney from the county following his in-
duction into the Army of the'united States in March, 1918,
during the two-year term to which he was elected at the general
election in 1916. Childress County v. Sachse, 310 S.W.2d 414
(Tex.Civ;App., 1958, error ref. n.r.e. 158 Tex. 371, 312 S.W.2d
380), passed on the authority of the county judge to declare a
vacancy in the office of county commissioner upon a change in
boundaries of the commissioners precinct in March 1955, during
the term of the elected incumbent which began on January 1, 1955.
This procedure has no application to replacement of a hold-over
incumbent after his term has expired. The duty of the incumbent
to continue in office until his successor qualifies is the same,
whether the successor has been elected or whether he is to be ap-
pointed because of failure to elect, and the hold-over's rights
in respect to the office are no different in the one case than
in the other. He is holding the office by sufferance, rather
than from any intrinsic title to the office. State v. Cocke,
54 Tex. 482 (1881).  A removal proceeding is no more necessary
in the latter event than in the former.

          All the cases cited in the second paragraph quoted
from Opinion No. WW-529. supra, confirmed the power to appoint
a successor following expiration of an incumbent's term where

                            -1959-
Honorable William Hunter, page 8 (C-415)


there was no officer-elect to assume the office: yet'in none of
those cases had there been an adjudication by a district court,
prior to the time the appointment was made, that a vacancy existed.
Each case involved a contest between a hold-over incumbent and an
appointee over the right to a county office. We think these cases
are controlling in the fact situation before us. It is our opinion
that the ,CommissionersCourt of Sherman County may recognize the
existence of a constructive vacancy'in the office of County Attorney
of Sherman County at the present time and may appoint a person to
fill the vacancy. Att’y Gen. Op. No. O-3024 (1941).



            Where no eligible candidate was elected to the
        office of County Attorney of Sherman County at the gen-
        eral election in 1964, and the incumbent continues to
        perform the duties of the office, as provided in Article
        16, Section 17 of the Texas Constitution, the Commissioners
        Court of Sherman County may recognize the existence of a
        constructive vacancy in the office for the term,which began
        on January 1, 1965, and may appoint someone to fill the
        vacancy, without the necessity for a judicial determination
        by a district court that the vacancy exists.

                                     Yours very truly,

                                     WAGGONER CARR
                                     Attorney General



                                        Wary K?'Wall
MKw:sj :cg                              Assistant

APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman
Ivan Williams
Harold Kennedy
Linward Shivers
Marietta Payne

APPROVKD FOR THE ATTORNEY GENERAL
By: Stanton Stone
                              -,1960-
