   The Attorney           General of Texas
                   October 7, 1981




Honorable Bill M. Reimer                Opinion No.   m-374
Coma1 County Attorney
Room 112, Courthouse                    Re:  Authority to call special
New Braunfels, Texas 18130              election for commissioner's
                                        court when regular elections
                                        were enjoined.

Dear Mr. Reimer:

     Article XVI, section 65 of the Texas Constitution provides that
county commissioners are to be elected for staggered terms of four
years. Prior to the last general election in Coma1 County, however, a
suit was brought against the county, with the result that a federal
court enjoined the county from holding its scheduled election for
commissioners in precincts one and three.   The suit "as subsequently
dropped, and the injunction was then lifted.     Your question is as
follows:

          Is there any statutory provision authorizing a
          County Judge or County Commissioner's Court to
          call a special election for County Commissioners
          when the original primary and general election
          were enjoined due to allegations of population
          imbalance,   but   when    such   injunction    was
          subsequently   dismissed    after   the    county's
          redistricting plan was approved?

     Article V, section 18 of the Texas Constitution provides that
county conrmissioners shall continue to perform the duties of their
office until their successors "shall be elected and qualified."  See
also Tex. Const. art. XVI, 917.       Therefore, until such time as
successors to the incumbent commissioners in precincts one and three
have been elected or appointed and have qualified, said incumbents
continue in office.

     Dollinger V. Jefferson County Conmissioners Court, 335 F.Supp.
340 (E.D.T~x. 19711, holds that a cormnissioners court has no authority
to call elections in any manner other than as provided in Texas law.
Regular elections must therefore be held at the times specified in the
constitution and statutes, and special elections may only be called
for the purposes and under the circumstances spelled out therein. We




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Bill M. Reimer - Page 2   (Mw-374)




have been cited no provision, nor have we located any, which would
authorize a county judge or commissioners court to call a special
election under the circumstances you describe.    Compare Elec. Code
art. 4.09 (special election may be called to fill vacancy which is to
be filled by election).    We therefore answer your question in the
negative.

     Although  YOU    only   inquire    as    to  the  authority    of   the
commissioners   court   to   call   a     special  election   under    these
circumstances, we feel compelled to     point out that under Texas law, a
vacancy now exists in the precincts     in question within the meaning of
article 2341, V.T.C.S.   That statute    provides as follows:

               In   case  of  vacancy   in  the   office  of
          commissioner, the county judge shall appoint some
          suitable person living in the precinct where'such
          vacancy occurs, to serve as commissioner for such
          precinct until the next general election.

     Tom V. Klepper, 172 S.W. 721 (Tex. Civ. App. - El Paso 1915, writ
ref'd), is almost squarely on point.     In that case, Tom, who was
elected county commissioner in 1912, alleged that the failure to hold
a general election in 1914 meant that he was entitled to continue in
office until a successor was "elected and qualified" within article V,
section 18 of the constitution.   The court held, however, that under
the facts, a vacancy existed in the office of commissioner in Tom's
precinct.  It stated as tallows:

          Our opinion is that there was a vacancy in the
          office of county commissioner for that precinct,
          within the meaning of article 2240 [now article
          2341, V.T.C.S.], above quoted, at the expiration
          of appellant's full two years' service [now four
          years],  by reason of the failure to elect a
          commissioner  for that precinct at the general
          election in 1914. We think this view accords with
          the settled policy    of our state Constitution
          restricting the duration of the terms of oifice,
          as provided in the articles of the Constitution
          and statute quoted.    A holding beyond the two
          years would be by sufferance, rather than from any
          intrinsic title to the otfice.

172 S.W. at 723. See also Clark V. Worn&l,    65 S.W.2d 350 (Tex. Civ.
APP. - Waco 1933, no writ); 47 Tex. Jur.2d Public Officers $44.

     In view of these authorities, we believe the county judge of
Coma1 County may now appoint a successor to serve until the next
general election.   In any event, an election must be held in the
precincts   in question   at  the next   general   election  to elect
commissioners to serve the remainder of the unexpired terms. V.T.C.S.
art. 2341.




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Bill M. Reimer - Page 3   (MW-374)




                              SUMMARY

               Texas law does not authorize a county judge
          or commissioners court to call a special election
          to vote on county commissioners when the regular
          election was enjoined but the injunction was
          subsequently lifted.




                                         MARK      WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
James P. Allison
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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