                         February 6,. 1959


Honorable Charles 3. Lieck, Jr.
Criminal District Attorneys
Bexar County
San Antonio 5,~Texas
                               Opinion No. WW-550
                               Re: Whether the office of’Dis-
                                   trict Judge should be filled
                                   by appointmentor by special
                                   election under the stated
Dear Mr. Lieck:                    faote.
            You have requested an opinion on the proper method
for filling the offiae of District Judge under the,facts set
out In the following letter addressed to you by the County Av-
dltor of Bexar County:
           “Judge Raymond Gerhardt was re-elected
      In ‘theNovember, 1958 Qeneral Election, to
      the bench of the 45th Judicial District Court
      of Bexar County, Texas, to a ne* four year term,
      beginning January lst, 1959. However, Judge Qer-
      hardt passed away on December 3lst, 1958, be-
      fore.the start of the mew term to whloh he had
      been elected.
           “On January 5th, 1959, the Hon. Priae Daniel,
      Covernor of the State of Texas, appointed the
      Hon. Charles W. Barrow to fill the vacancy in the
      45th Judicial District Court. Judge Darrow took
      his oath oi’offlae on January 6th, 1959, at nhioh
      time he assumed the duties of Judge of the 45th
      Judlaial Distriat Court.
            “In view of the ?a& that one oi the County
       Judges of Bexar County made a publlt  statement
       that, in his opinion, the Qeveruor did not have
       the right to make the above appooiutment, but that
       a SpecialEleation should have been held to elect
Hon. Charles J. Lleck, Jr., Page 2 (WW-5%)

      a judge to the 45th Judicial District Court,
      I would like for you to furnish me with an
      opinion as to the legality of the Qovernorls
      action in thia appointment.Please advise as
      to whether or not the Governor has the right
      to ~makcsuch'an appointmentor should a Special
      Election have been called to fill this vacancy.
            "I would appreciateyour prompt action In
       this matter, as I will be aempelled to hold up
       payment of Judge Barrow's salary as a member of
       the Juvenile Board."
           The questions which you present are:
            1. Under the circumstancesoutlined, was there a
vacancy in the office of Judge of the 45th Dlstriot Court?
            2. If there was a vaaancy, should the vacancy be
filled by appointmentby the Governor under the provisions of
Artiale V, Section 28 of the Constitutionof Texas, or would
he have to call a special election under the provisions of Ar-
ticle 4.09 of the Eleation Code of the State of Texas?
            In the brief accompanyingyour request, you have
expressed the opinion that the office was vaaant and would have
to be filled by the Governor under the provisions of Article V,
Section 28 of the Constitution.We agree with these conclusions.
             In support of our conclusion that there uas a va-
cancy in the office we cite the folloulng authorities:State
    Cocke, 54 Tex. 462 (1881); Maddox v. York, 54 S.W. 2Am.
Clv.App. 1899, affirmed 93 Tex. 2'(> 55 S W 1137); TEE,;; Eep-
 er, 172 S.W. 721 (Tex.Clv.App.19li, err&'ref. ; Do
  ate ex rel. Reece, 19 S.W.2d 574 (Tex.Clv.App.1929).
i-i-
            In answer to your second qua&ion, ue are of the
opinion that the vaoancy was to be filled by appointment of
the Governor rather than by a special election. Article V, Sec-
tion 28 of the Constitutionprovides:
           "VacanciesIn the office of ,judgesof the
      Supreme Court, the Court of Criminal Appeals, the
      Court of Civil Appeals and the District Courts shall
      be filled by,the Qovernor until the next sucoeedlng
      General Election; . . ."
This constitutionalprovision for appointmentby the Governor
would control over a statute attempting to provide for a special
election to fill the vacancy. However, we are of the opinion that
Artlole A.09 of the Election Code does not purport to apply to
Hon. Charles J. Lleck, Jr., Page 3 (WW-550)             2au

the office of District Judge. It does not undertake to provide
the rules for determiningwhether an office, ora vacancy in
an office, Is to be filled by election; It .merelyprovldes the
time and manner for ordering and holding the election where an
election is required. Whether a particular offl.ce~lsto be
filled by election mustbe Sound elsewhere in the law.
            Article 4.09, popularly called the "Qarner Amend-
ment," was orIgInaLly enacted in 1933 to replace former Article
2952 of the .RevlsedCivil Statutes. Upon the death or reslgna-
tlon of an offloer-elect,the vacancy In the new term does not
occur until the beginning of the term, and under the former law
It had been held that an election to fill a vacancy could not
be called until the vacancy actually occurred. The purpose of
the amendment was to enable a special election to be ordered
and held In ant~iclpatlonof a vacancy before the vacancy actual-
ly occurred. In Sections 2 through 6, the statute sets out five
different situations under which an election Is to be ordered
immediately.Section 6 reads:
           "Section 6. Election on death of offlcer-
                                       an offlae which
      elect. When the offloer-elec.t'to~
      must be filled by election dies or becomes ln-
      eligible to qualify for the offlae to which he
      was elected, the proper officer shall lmmedlately
      order an election to elect a successor toestheln-
      cumbent of the offICe."
Unlike Seations 2 through 5, this se&Ion refers to an "offise
which must be filled by eleotion" rather than "anoffice a va-
cancy In which" is to be or mu~stbe filled by election. Whether
this variance In lsnguage was .lntentlonalor Inadvertent,the
result Is the same as IS it had referred to a vacancy In-~
                                                         office.
There are some offices which must be filled by election; ex-
amples of such offices being State Senator, State Representa-
tive and United States Representative.There Is totally lacking
any power to make an appointment to fill either of those of-
fices. But where an offiae Is to be Sllled by appointmentupon
the occurrence of a vacancy, It Is not an office whioh must be
filled by election. This was the holding in Attorney qeneral's
Opinions O-2965 (l*O), O-5093 (1943),~ and 0-6300 (1944). We
conaur In these ,holdlngs.
                         SUMMARY
           Where a Dlstrlot Judge who had been re-
      elected to a new term died before the beginning
      of the term, there was a vaaancy In the new
      term upon the commenoement~ofthe term. The va-
      cancy was to be fllled~by appointment by ~the
      Governor until the next general.electlon,under
Hon. Charles 3. Lleck, Jr., page 4 (WW-550)

         Article V, Section 28 of the Constitution.
         Article 4;Og of the Election Code, relating
         to special elections to Sill vacancies, does
         not apply to the office of District Judge.
                                    Yours very   truly,
                                    WILL WILSON
                                    Attorney Qeneral of Texas




                                           Assistant
MKW:bh
APPROVED:
OPINION COIYHITTEE
Oeo. P. Blackburn,,Chairman
Charles D; Cablness
Morgan Nesbltt    't
REVIEWEDFORTHE ATTORNEYGENERAL
BY:
        ,W.V.Qeppert
