Hon. L. A. Wood            Attention: Hon. T. M. Trimble
State Superintendent
Public.Instruction
Apstin,.Texas
Dear Sir:                  Opinion No. C-1664
                           Re: One appointed to the office of
                               County School Superintendent
                               may hold the office until the
                               next general election, irre-
                               spective of the length of the
                               unexpired term of his prede-
                               cessor.
Your letter of November 6, 1939, to Gerald C. Mann, Attorney
General of Texas, hasbeen received by this department. Your
letter states that Mrs. Guy T. Newton has been appointed to
PQl the unexpired term of her deceased,husband as County
Superintendent. You quote from a letter reoeived by you from
&frs.Newton.as followst
     "In my special case, my husbandts term would have
expired January 1, 1943, sinoe this is a four year office
and he bad served not quite one years of his term. I am told
that I can hold it until the next general eleotion, but it
ssems.to me this sould be interpreted as meaning until the
next general election for this office, which would occur 4
1942. Which interpretation is correct?"
Your attention is direoted to Article 2688, Revised Civil
Statutes of Texas, as follows:
       "The Commissioners' Court of every county having three
       thousand scholastic population or more as shown by the
       preceding scholastic oensus, shall at a general eleot$on
       provide for the election of a County Superinten,dentto
       serve for a term of four years, 5fi
                                         * 0"
Then, we direct your attention to Artiole 2355, Revised Civil
Statutes of Texas, as amended by the Acts of 1927',Fortieth
Legislature, wherein the Commissioners8 Court is given the
power to fill vacancies, as followsi~
       "The court shall have power to fill vacancies in the
Hon. L. A. Wood, page 2, O-1664




     office of: county judge, county clerk,sheriff, county
     attorney, county treasurer, county surveyor, aounty
     hide inspeotor, assessor of taxes, collector of taxes,
     justices of the peace, oonstables and county superin-
     tendent of Public Instruotion. Suoh vacancies shall be
     filled by a majority of the members of said court,
     present and voting, and the person ohoosen shall hold
     office until the next general eleation." (Underscoring
     ours).
You will note that the above statutory provision, Article 2355,
applies to the filling of vaoancies in county offices.
Whereas, Article 4, Seotion 12 of the Constitution of Texas
applies to the filling of vacancies in~state and district
offioes by appointment of the Governor, as follows:
    "All vacanoies in state or district officesp except
    members of the Legislature, shall be filled unless
    otherwise provided by law, by appointment of the
    Governor, which appointment, if made during its Session,
    shall be with the advice and consent of two-thirds of
    the Senate present. If made during the recess of the
    Senate, the said appointee, or some other person to
    fill such vacancy, shall be nominated to the Senate
    during the first ten days of its Sessia.    If rejected,
    said office shall immediately beoome vacant,.and the
    Governor shall without delay, make further nominalions,
    until a confirmation takes place. But should there be
    no confirmation during the Session of the Senate, the
    Governor shall not thereafter appoint any person to fill
    such vacancy who has been rejected by the Senate; but
    may appoint some other person to fill the vacancy until
    the Session or until the Regular Session to said offiae,
    should it sooner occur. Appointments to vacancies in
    offices elected by the people shall only continue unt 1
    the first general election thereafter." (Underscorxi+
                                                        g
    ours.).
Prior to 1931, the office of county school superintendent
was for a term of two years. Sinae 1931, the offioe of
county school superintendent has been for a term of four
years. The other oounty offioes enumerated in Article 2355
are for terms of two years. There are numerous distriot and
state offices for longer terms than two years, and irrespeative
of the length of the unexpired term of the appointeers
predecessor, the appointee may only hold office until the
next general election. There baa been no judioial oonstruotion
of Article 2355, aforesaid, as to the office of county school
superintendent. However, the language is clear and is not
Hon. L.   A.   Wood, page 3, O-1664




subject to a contrary construction than that the appointee must
be up for election, and that the offioe is open to election at
the next general election, and that the term of the appointee ~$11
expire on Jsnuary 1st following the next general eleotion. That
is, where an elective office is vaoant and is filled by appointment
of the Governor or Comaissioners~ Court, suoh appointive power
is only a matter of expediency in that the will and power of the
people will prevail to name the incumbent at the next general
election.
Believing this to answer your inquiry, we are

                                 Yours very truly
                             ATTORNEY GRRRRAL QF TRXAS
                             s/ Pat Coon

                                       Pat Coon
                                      Assistant


PC:ob/og

APPROVED NOV. 17, 1939
s/ Gerald C. Mann
ATTORnEY GBiRRAL OF TEXAS

APPROVRD Opinion Committee
By BWB, Chairmen
