            THEA         ORNEY          ENIE
                       QF   TEXAS




Honorable R. D. Oswalt           Opinion No. C-32
County Attorney
Wilbarger County               Re :   In the absence of the County
Vernon, Texas                         Judge who is the proper person
                                      to perform the duties of his
                                      office under the election laws
                                      pertaining to school districts,
Dear Mr. Oswalt:                      and related questions?

            This office is in receipt of your letter of February
22, 1963,   in which you ask the following questions:
          "(1) When a County Judge is absent from his
     office for a period of more than 90 days, what is
     the effect of such absence?
          "(2) In the absence of the County Judge who
     shall perform the duties of his office under the
     election laws pertaining to school districts?
          “(3)  In the absence of the County Judge who
     is also the Ex-Officio County Superintendent, who
     shall perform the duties of his office?
            Your statement of the facts is as follows:
           "Hon. R. R. Donaghey was elected County Judge
     of Wilbarger County, Texas, in the general elec-
     tion held in November, 1962.   On January 1, 1963,
     he duly qualified by filing his oath and bond.
     Subsequently, on January 2, 1963, it was brought
     to the attention of the Clerk of the County Court
     that Judge Donaghey was ill and physically unable
     to transact the business of his office. At a
     meeting of the practicing lawyers of the County
     Court of Wilbarger County held on January 7, 1963,
     such lawyers elected Jack Hightower Special County
     Judge under the provisions of Article 1934 and
     1887, RCS of Texas, for the trial and disposition
     of cases pending in such court during the inability
     of Judge Donaghey. Judge Donaghey is still at this
     date unable to discharge the duties of his office."


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Hon. R. D. Oswalt, page 2   (C-32)



          Your attention is called to the following statutes:
          Article 1929. Vernon's Civil Statutes
          'IHeshall attend at his office from day to day,
     and not absent himself from the county or the State
     without the permission of the commissioners court,
     to be entered on its minutes, nor shall he be absent
     with such permission for a longer period than ninety
     days."
          Article 19%.   Vernon's Civil Statutes
          "If a county judge fails to appear at the time
     appointed for holding the court, or should he be ab-
     sent during the term or unable or unwilling to hold
     the court, a special county judge may be elected in
     like manner as is provided for the election of a
     special district judge. The special county judge so
     elected shall have all the authority of the county
     judge while in the trial and disposition of any case
     pending in said court during the absence, inability,
     or such refusal of the county judge. Similar elec-
     tions may be held at any time during the term, to
     supply the absence, failure or inability of the
     county judge, or any special judge, to perform the
     duties of the office. When a special county judge
     shall have been so elected, the clerk shall enter
     upon the minutes of the court, a record such as is
     provided for in like cases in the district court."
          In answer to your first question, we assume the ninety-
day period you refer to is that which appears in Article 1929.
This statute provides that the County Judge shall attend his of-
fice from day to day, and not absent himself from the county or
State without permission of the Commissioners Court, nor shall
he absent himself with permission for a period longer than ninety
days. We interpret this wording to mean that the County Judge
cannot leave the county or State for more than ninety days, even
with the permission of the Commissioners Court. Under this in-
terpretation, Article 1929 would not apply to the fact situation
which you have submitted to this office.
          However, Article 1934 would apply. It provides that
where the County Judge fails to appear at the time appointed for
holding court or where he is absent during the term or is unable
or unwilling to hold the court, an election of a %pecial" County
Judge is authorized. This election is held in the same manner in
which a "special" District Judge is elected; that is, the

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.   -




        Hon. R. D. Oswalt, page 3   (C-32)


        practicing attorneys before that court shall cast lots to elect
        a "special" Judge.
                  In answer to your second and third questions as to who,
        in the absence of the County Judge, performs his duties as to
        school district elections and as ex-officio County Superintend-
        ent, the Legislature has failed to delegate the responsibility or
        authority to any one. The Legislature specifically sets out the
        authority of the "special" County Judge in Article 1934, which
        confines him to the trial and disposition of any case pending in
        the Court. We refer you to the two enclosed opinions from this
        office. Opinion No. O-5374 holds that a "SpecialtlCounty Judge
        cannot preside over or act as a member of the Commissioners Court.
        Opinion No. v-615 holds that the "special" County Judge cannot
        act as ex-officio County Superintendent.
                  It is therefore our opinion that the authority of a
        "special" County Judge is confined to the trial and disposition
        of any case which is pending in the County Court.


                 The 90-day period referred to in Article 1929,
            V.C.S., is interpreted to mean 90 days outside a
            county or state.
                  The authority of a "special" County Judge is
            confined to the trial and disposition of any case
            which is pending in the County Court.
                                       Yours   very   truly,

                                       WAGGONER CARR
                                       Attorney General


                                             xi11 Morse, Jr.   /
        BM:wb                                Assistant
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Paul Robertson
        Howard Mays
        John Reeves
        APPROVED FCR THE ATTORNEY GENERAL
        BY: Stanton Stone


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