9   .




                                                                        R-348



                    THEA~TORNEYGENERAL
                             OFTEXAS
                                    AUSTIN.   TEXAS


                                      May 1, 1947


        Hon. Glenn Capps                      Opinion.No. V-178
        County Attorney
        Mason county                          Re:  Authority of the Commis-
        Mason, Texas                               sioners’ Court to appoint
                                                   a, Justice of the Peace
                                               ~. .where there was no per-
                                                   sen elected to ,the office
                                                   at the last General Elec-
                                                   tion, and related questions.
                                I



        Dear Sir:

          .        Your request for an opinion from this office is, in part,
        as fellows:
                 .
                   “On the 14th day of August, 1914, the Commis-
              sioner’s Court of Mason County, Texas, divided
              Mason County into aeven Justice of the Peace ?re-
              cincts. For the past fifteen years or more no Jus-
              tics&the    ?eace’has been elected in any Justice of
              the Peace Precinct in Mason County, Texas, except
          :, Justice lf the Peace Precinct No. One, with office
              in the hwri’of Mason, Texas. At the present time
              the citizens of the Hilda Community in Justice ef
              the Peace Precinct No, Seven, in Mason     County,
              Texas, desire to have a Justice of the Peace ap-
              pointed for that Precinct.  They failed to nominate
              a Justice of the ?eace for Precinct No. Seven at
              the Primary Election in 1946, or te elect a Justice
              of the Peace in and for said Precinct No. Seven at
              the General Election in 1946. e .R

                                    “QUESTIONS

                 ‘1. Does the fact that no Justice of the Peace
            was nominated or elected at the Primary or Gen-
            eral Election held in 1946, nor for several yeaps
            prior thereto in said Justice Precinct constitute a
            vacancy in said office as contemplated by the above
            cited Constitution Article 6, Section 28, and Article
            2555, Vernon’s Annotated Civil Statutes?

                ‘2.  Would the Commissioners” Court of Mason
            County, Texas, have the constitutional or Statutory
                                                                       .   .




Hon. Glenn Capps - Page 2                          Opinion No, V-178



    Authority to appoint a Justice of the Peace in said
    Justice of the Peace Precinct No. 7 er ether Pre-
    cincts in Mason County, where no Justice of the
    Peace was elacted to hold office until the next
    General Electisn?

         “3. Are there any Constitutional er Statu-
    tery authority whereby a Justice of the Peace
    could be appointed or elected by special election
    in said Justice. Precinct or the other Justice Pre-
    cincts in Mason County to hold office until the
    next General Election?

          “4. Could the Legislature by Special Act au-
    thorize the Commissioner’s     Court of Mason County,
    Texas, to appoint a Justice of the Peace for said
    Precinct to bold office until the next General Elec-
    tion?

         “5. Could the Legislature by Special Act au-
    thorize tbe qualified voters in said Justice Precinct
    to call a special election and elect a Justice of the
    Peace to hold office until tho next General Election?.

         Article   V, Section 16, Constitution lf Texas, provides in
part as follows:

          “Each organized  county in the Statenow or here-
    after existing, shall be divided from time to time, for
    the convenience of the people, into precincts, not less
    than four and net more than eight. Tha present Coun-
    ty Courts shall make the first division. Subsequent
    divisions shall be made by the Commissioner”s Court,
    provided for by this Constitution. In each such prs-
    cinct there shall be elected at each biennial election.
    one justice of the peace and one constable, each of
    whom shall hold his office for two years and until his
    successor shall be elected and qualified:. e a? ,(Under-
    scoring ours)

         Article   V, Section 28 of our Constitution provides:

          “Vacancies in the office of Judges of the Supreme
     Court, the Court of Criminal Appeals, the Court of
    Civil Appeals and District Courts shall be filled by
    the Governor until the next succeeding general elec-
    tion; and vacancies in the office of County Judge and
    justices of the peace shall be filled by the Commis-
    sioners Court until the next general election for such
Hon. Glenn Capps - Page 3                         Opinion Ne. V-178



    offices,”   (Underscoring      ours)

         Article   2355, V.C.S.,    provides:

          “The Court (Commissioners’ Court) shall have
     power to fill vacancies in the office of: County Judge,
     County Clerk, Sheriff, County Attorney, County Treas-
     urer, county Surveyor, County Hide Inspector, As-
     aessor of Taxes, Collector of Taxes, Justices of the
     Peace, Constables, and County Superintendent of Pub-
    liaInstruction.   Such vacancies shall be filled by a
     majority vote of the members of said Court, present
     and voting, and the person chosen shall hold office
     until the next general election.’ (Parenthesis and
     underscoring ours)

         Since there was no person nominated for the Justice of the
Peace, Precinct No. 7, in the primary election in 1946 and there
was no person elected to said office in the general election in 1946,
there now exists a vacancy in the office of Justice of the Peace of
Precinct No. 7, Mason County. See State v. Cocke, 54 Tex. 412;
Maddox v. York, 54 S. W. 24; 93 Tcx. 275: Dobkins v. State, 19&W.
2d 914.

          Section 28 of Article V of the Constitution of Texas makes
it the mandatory duty of the Commishioners’ Court to fill a vacancy
in the office of Justice of the Peace. Moreover, there is no consti-
tutional or statutory provision authorizing a special election in such
cases.

          In answer to your first question, therefore, it is our opin-
ion that since no Justice of the Peace was elected at the generalelec-
tion in 1946, there exists a vacancy in said office as contemplated by
Article V, Section 28, of our Constitution and Article 2355, V.C.S.

          In answer to your second question, it is our opinion that the
Commissioners’ Court of Mason County does have the authority to
appoint a Justice of the Peace in Precinct No. 7 to hold said office
until the next general election.

          In answer to your third question, it is our opinion that
there is no authority for holding an election for the purpose of elect-
ing a Justice of the Peace to fill the vacancy that now exists in said
office.

          In view of our answers to your first three questions, it is
unnecessary to answer your fourth and fifth questions concerning
the authority of the Legislature to provide by special act for the
filling of such vacancy.
                                                                      -   “.




Hon. Glenn Capps - Page 4                         Opinion No. V-178



                          SUMMARY

         There exists a vacancy in the office of Justice
    of the Peace of Precinct No. 7 in Mason County as
    no person was elected to said office in the general
    election in 1946, and said vacancy should be filled
    by the Commissioners” Court of Mason County. Art0
    V, Sec. 28, Const, of Tex.; Art- 2355, V.C.S.

                                     Yours very truly

                              ATTORNEYGENERALOF             TEXAS




                                      Assistant

JR:djm

                              APPROVED     MAY 1, 1947


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                              ATTORNEYGENERALOFTEXAS
