                                AUSTIN    ~.TExAs
PRICE  DANIEL
ATTORNEYGENERAL
                             January 28, 1949

  Hon. F. B. Caudle               Opinion 180, V-761.
  County Attorney
  Frenklin County                 Re: The period of an appoint-
  Mount Vernon, Texas                 ment to fill   a vacencg in
                                      the office   of Dlstpict
                                      Clerk; same having been
                                      made after the last gener-
                                      al election   and before the
                                      next tern to which the de-
                                      ceased had been elected.
  Dear   Sir:


             Reference is made to goup recent           request
  which reads in substance as follows:
               “The District  ~Clerk of Franklin County,
         who was reelected   at the November Election,
         1948, died thereafter    on the 15th. of Hovem-
         bep, 198~    The two District   Judges. 0 0
         made an appointment as provided by law; an6
         the appointee accepted and qualifier%.


               “Does the appointment filling    the vacan-
         cy of the District   Clerk8s Office pun to the
         next Genepal Election,    1950; op since the
         vacancy and appointment occuPed between the
         General EIection anti the following    Jan. 1, is
         it necessary that there be an appointment OP
         reappointment as of Jan. 1, 1949.      In other
         words  when does the appointment expFPe?
                 Art. XVI, Sec.   27 of the State     Constitution
  proviaes      aa follows:
                “In all elections  to fill      vacancies    of
         office   in this State, it”shall       be to fill
         the unexpired term only,
                 Art.   1895, V. C. S.,   provides   as follows".
Hon. F. B. Caudle,         page 2 (V-761)


           %he~ve~    a vrcaney oceura tn the of-
     fice of district    clerk, It shall be filled
     by thii district  judge of such c6unty; and
     such appointee shall give bond and qualify
     and may hold his officd    until the next gen-
     eral election.    Where a vacsney occurs in
     a count.. having two or more district    courts,
     the vacency shall be filled     by the judges
     of such courts;   and if they fall’ to agree,
     the Governor, upon the certificate     of suoh
     judges, shall opde; a special election      to
     fill  such vacancy.
          We ham been unable to f1nd.a case where the
courts have passed upon this specific      qriestion. How-
ever, in the case of Dobklns v, Reece, 17 S,U. (26) 81
(Writ of &TOP    Refurod),  in construing slmlla~ statuto-
ry and constitutional    ppovisionr  we find the followingn
             “This appeal involves a eonteat ovep the
     office    of sheriff   of Cpoke aounty.       Jake
     Wright was the duly lectrd and sating sher-
     iff of Cooke oounty        OP the ten     br&.inln
     Januspy ,l, 1927, and indlng January 1, ,19         s 9.
     He was du y nominatscl duriag ‘the Jgly phi-
     mart, 1929, and~’ wa.8 reelected
                              ’            at the-succeed-
     ing general eiection,       lovembor 6, 1928.       On
     Deceibrr 12, 1928, he died, without having
     qualified    under his new term,        On December
     14, 1928;tho      county oommirr~onr~s~       coin%
     elected or appbinted Jonathaii Dobkins aa
     sherl;ff , who bappenod to ba at the time of
     his appointment a member of the oommlssion-
     ei9 9 couiit, but, as-‘he testified;       did not
     participate    iii the appointment, and was not
     present thereat,
           ”
               e   *   e


           ‘Dibkinr filed hll bond on the 14th of
     December, ~1928, and qualified    and entaped
     upon the. dutie,s of his offior.    It so hap-
     pen.6 that the po~~onnol of the cotission-
     em 9 court changed on JmuaPy 1, 1929, and
     two of the former members retirbd,      and two
     new nembem qualified.      On Janiiapy 2, 1929,
     the matter~~of the election    OP appointment of
     a shoplff   again wa8 conaldored by the ooxas.Ls-
     aloners 1 cow?t, and Ate Weeee warnelected,
     0 0 e
Hon. F. B. Caudle,    page 3 (V-761)




           “The two questions which we think me
     important ,and involved in this case aPe8 (1)
     Was the original   appointment by the commis-
     sioners 1 court of Dobkins merely for the un-
     explped temn ending December 31, 1928, and
     not including the’tepm beginning January 1,
     1929, or, did the appointment extend to the
     two succeeding years, and until December 31,
     1930, or January 1, 19317


            “The Constitution.   1iPllts the term of
     the sheriff    to two years.     He cannot be
     elected for two terms at the same election,
     a fortiorl,    h6 cannot be appointed fop two
     terms, OF a pa& of one term and whole of
     the succeeding term at one end the same
     time.     when the duration OF term of an of-
     fice la a question of doubt OF uncertainty,
     the interpretation     should be followed which
     limits such office     to the shortest      term.
     Wright    v. Adams, 45 Tex. 134,      Other au-
     thoritles    might be cited,    but we believe
     in the discussion     heretofore    sufficient    has
     been said to show that in our opinion the
     appellantOa term under his appointment in
     December, 1928, had expired at the time the
     election    was had by the eommiasionePsB
     court on Januuy 2, 1929,          If such view be
     correct,    then it follows that a vacancy
     existed,    for the new term of two yeapa foP
     which the deceased, JakG Wright, had been
     elected by the voters of Cooke couI1tr, -4
     that the commissioners0 cauPt had authors-
     ity to fill    such vacancy,
           In view of the foregoing   it IS oup Opinion
that~~the appointment of the District   Clerk expires on
Januaxy 1, 199.
           However, Art.    XVI, Sec.    17, provides    that”
            !A11 officers within this State shall
     continue to perform the duties of their of-
     fices untii their successors    shall be duly
     qualified.
Hono F. B. Caudls,      page 4 (v-761)


             Art.   18, v. Co S.,   pPovl&es in part as Sollowsn
               'Each officer, whether elected OP ap-
        pointed under the laws of this State, and
        each Commissioner, or member of any board
        or commission created by the laws of this
        State, shall hold his office    for the term
        pxWride& by law and until his successor ii
        elected   or appointed and quallfiesp  0 0 0
          It is apparent from the Sopegoing that the
present District Clerk shall continue to sot until his
successor is appointed and qualifies,


              Where the Distriot   Clerk of Fpanklih
        County was reelected    to succeed himself at
        the Bovember election     1948, died on the
        15th of Bovember, 1948, and the District
        Judges made an appointment to Sill the va-
        cancy a6 provided by law, said appointment
        expired on the first    day of January, 1949,
        Apta XVI, Sec. 27 of the State Const,? Apt,
        (2dy,8y1 C, S.8 Dobkins ve Reece, 17 So W,

                                         vwy   truly   youPs,
                                    ATTORBEYGgagRALOF TEXAS




BA:bh                                     Assistant
