-




             THEATTORNEYGENERAL
                      OF TEXAS




                            December 1,   1958

    Honorable Walter P. Purcell           Opinion No. WW-529
    County Attorney
    Duval County                          Re: Whether other appoint-
    San Diego, Texas                          ments to succeed original
                                              appointees to fill vacan-
                                              cies in the offices of
                                              County Commissioner and
                                              Justice of the Peace may
                                              be made following the
                                              general election where no
                                              one was elected to the un-
    Dear Mr. Purcell:                         expired term.
               Your request for an opinion reads in part as follows:
               "There existed a vacancy in the office of
          County Commissioner of Precinct 4 and Justice of
          the Peace of Precinct 1 which were properly filled
          by appointment by the County Judge and the Commis-
          sioners Court, respectively, and the following
          people were appointed to their respective posi-
          tions: Jose Ramos, Commissioner Precinct 4 and
          C.E. Peres, Justice of the Peace, Precinct 1, and
          there is no question as to the validity of their
          appointments and their qualifications. Both of
          these appointments were prior to the General Elec-
          tion held on November 4th, 1958.
               "Assuming'that the terms of these officers
          expire when the results of the General Election
          of November &th, 1958 were canvassed officially,
          the County Judge on November lOth, 1958appointed
          Felipe Valerio, Jr. as Commissioner for the unex-
          pired term Which extended through December 31st,
          1958,and the Commissioners Court appointed P.Q.
          Rodriguez to fill the unexpired term of Justice
          of the Peace, Precinct 1, which extended through
          December jlst, 1958. Both of the appointees of
          November lOth, 1958presented their bonds, which
          were approved, and took the oath of office. No
          question is made as to the form of qualification.
Hon. Walter P. Purcell, page 2 (w-529)

         "The original appointees, who were serving
    up until the General Election without question,
    now contend that no vacancies existed and that
    the County Judge and the Commissioners Court had
    no right or authority to appoint others in their
    place to serve the unexpired term up until December
    31st, 1958. The appointees named and qualified in
    form on November lOth, 1958 insist on their right
    to serve.
          "There was no candidate running or elected
     to fill these unexpired terms.
          "I would appreciate an opinion as to which
     set of officers are entitled to serve during the
     ensuing period from the General Election until
     December 31st, 1958. There is no litigation in
     Court at this time in regards to these questions."
          Our study of this question has led us to the conclu-
sion that the persons appointed on November 10, 1958, are en-
titled to the offices for the remainder of the unexpired terms.
          The original appointments to fill the vacancies in
these offices were made until the general election in 1958. Art.
2341, Revised Civil Statutes; Art. V, Sec. 28, Constitution of
Texas. The period for which the original appointments were made
terminated either on the date of the general election or on the
date the Commissioners Court canvassed the returns of the elec-
tion as provided in Article 8.34 of the Election Code, and any
further right which the appointees had to the offices was by
virtue of the hold-over provisions in Art. XVI, Sec. 17 of the
Constitution and Art. 18 of the Revised Civil Statutes. While
there is some authority in other jurisdictions to the effect
that an appointment which is made to continue until a stated
election terminates on the day of holding the election, we are
of the opinion that the appointment should be construed as con-
tinuing until the completion of the election and that the hold-
over provision does not come into operation until the election
is completed. In any event the period of the appointments in
this case had terminated when the new appointments were made.
          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); Ex parte Sanders,
147 Tex. 248, 215 S.W.2d 325 (1948); 34 Tex.Jur., Public Of-
ficers, 8 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 vacan-
cy in the sense that the appointing power may proceed to fill the
vacancy by choosing a successor. State v. Cocke, 54 Tex. 482 (1881).
-   I




        Hon. Walter P. Purcell, page 3 (W-529)

        The purpose of the hold-over provision is to prevent an interrup-
        tion in governmental functions and not to confer on the hold-over
        officer any additional claim to the office as a matter of right.
        "The primary object of this provision, that the incumbent is en-
        titled to hold the office until his successor is elected or quali-
        fied, Is simply to prevent, on grounds of public necessity, a vacan-
        cy 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.
                  The shortness of the remaining portion of the unexpired
        term is without significance. While the occasions in which the ap-
        pointing authority might wish to make another appointment are prob-
        ably lessened because of the shortness of the period, the applicable
        principles are the same as if the unexpired term was to run for two
        more years or for any other period of time. As pointed out in At-
        torney General's Opinion No. ww-516 (1958), it would have been pos-
        sible for someone to run for and to be elected to this short term,
        and the incumbent would have been required to surrender the office
        to an elected successor as soon as the successor had qualified af-
        ter completion of the election. We do not perceive that the incum-
        bent's right to the office is any different than if there had been
        someone elected to the unexpired term.
                  We have notfound any Texas case passing on the power of
        the appointing authority to make another appointment to an unexpired
        term after the general election where no one is elected to fill the
        remainder of the term. In Ex parte Sanders, supra, which involved
        the title to the office of District Judge as between the aooointed
        incumbent and the person elected to the-succeeding full term, the
        Supreme Court held that the appointed incumbent was entitled to
        continue in office as a hold-over during the remainder of the un-
        expired term and observed that otherwise the district court 'would
        be at a standstill from November 2, 1948, to January 1, 1949, for
        want of a judge to man it." Also see Hamilton v. State, supra. In
        neither of these cases had another appointment been attempted and
        we do not consider them as having ruled on the exact date on which
        the original appointment terminated or on whether another appoint-
        ment could have been made.
                  It is clear that an original appointment can be made to
        fill an unexpired term where a vacancy occurs after the general
        election at which the succeeding full term is regularly filled.
        Dobkins v. State ex rel. Reece,-19 S.W.2d 574 (Te~.Civ,App. 1929).
        It is also clear that a Person other than the incumbent mav be ao-
        pointed, at the proper time, to fill a vacancy in a succeeding fill
        term where no one has been elected to that term or where the elect-
        ed 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, supraT State v. Cocke,
        supra; Maddox v. York, 54 S.W. 24 (Tex.Civ.App. 1899, affirmed
                                                                 .   -



Hon. Walter P. Purcell, page 4 (WW-529)

93 Tex. 275, 55 S.W. 1133 ; Tom v. Klepper, 172 S.W. 721 (Tex.
Civ.App. 1915, error ref.
          We are of the opinion that the above-cited authorities
are controlling unless there is a valid basis for distinction be-
tween the rights and powers existing where the incumbent holds
over into a succeeding full term and those existing where he holds
over into the remaining portion of an unexpired term. We are un-
able to find any such basis. The original appointee's rights are
based on the length of his appointment and not on the length of
the term. He has no more claim to the portion of the unexpired
term remaining after the termination of his appointment than he
has to the succeeding full term. We conclude that the offices
here involved were constructively vacant on November 10, 1958, and
were subject to being filled by further appointment for the re-
mainder of the unexpired term.
                               SUMMARY
          Where no one was elected at the general election
     in 1958 to fill an unexpired term in the office of
     County Commissioner which will expire on December 31,
     1958, an incumbent who was serving under an appointment
     until that election had no right to the offf.ceexcept
     as a hold-over after the election was completed, and
     the County Judge could appoint another person as his
     successor to serve out the remainder of the unexpired
     term. Likewise, under similar conditions the Commis-
     sioners Court could aDooint another Derson to serve
     out the remainder of & unexpired term in the office
     of Justice of the Peace.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas


                                   BY    27%&a
MKW:bh                                      Mary    Wall
                                            Assistant
APPROVED:
OPINION COMMITTEE
Geo . P. Blackburn, Chairman

Marvin H. Brown, Jr.
Edward Cazares
John Flowers

REVIEWED FOR THE ATTORNEY GENERAL
BY:
         W.V. Geppert
