Rice v. English

• Decision Date: 23 October 1987
• Docket Number: No. 12-87-0115-CV,12-87-0115-CV
• Parties: Thomas L. (Larry) RICE, Appellant, v. Charles E. ENGLISH, et al., Appellees.
• Court: Texas Court of Appeals

Page 439

742 S.W.2d 439

Thomas L. (Larry) RICE, Appellant, v. Charles E. ENGLISH, et al., Appellees.

No. 12-87-0115-CV.

Court of Appeals of Texas Tyler.

Oct. 23, 1987.

Rehearing Denied Nov. 23, 1987.

Herbert L. Morgan, Crockett, for appellant.

J.B. Sallas, Sallas, Meriwether and Pemberton, Crockett, for appellees.

Before SUMMERS, C.J., and COLLEY and BILL BASS, JJ.

COLLEY, Justice.

In this summary judgment case, plaintiff/appellant, Thomas L. (Larry) Rice, brought suit against defendants/appellees, Houston County and Charles E. English, the County Judge of Houston County and the four County Commissioners of Houston County, seeking a judgment declaring that he is entitled to the office of County Commissioner, Precinct 2 of Houston County, under an order appointing him to such office dated November 13, 1986, made by the incumbent County Judge. He also seeks damages and other relief not pertinent here.

The sole question presented in this appeal is whether Rice's appointment as County Commissioner made by the County Judge on November 13, 1986, was effective to entitle Rice to hold that office until the 1988 General Election.

The trial judge granted a summary judgment in favor of appellees. We reverse that judgment and remand the cause.

Randal McCullar was elected as County Commissioner of Precinct 2 in Houston County in the general election held in November 1982. He was nominated for re-election in the 1986 primary election and his name placed on the ballot for the general election to be conducted on November 4, 1986. McCullar was unopposed; however, he died on October 20, 1986. On November 10, 1986, the county commissioners canvassed the returns of the election and certified that McCullar received the votes necessary to win election to the office. On November 13, 1986, the County Judge, Hon. Herbert L. Morgan, by written order appointed Rice as Commissioner for Precinct 2 for a term of office beginning November 13, 1986, and extending "until the next general election, and until his successor shall have been elected and qualified."

Judge Morgan was not re-elected, and his term of office expired on December 31, 1986. He was succeeded by appellee, the Hon. Charles E. English, as county judge.

On January 7, 1987, Judge English, by written order, appointed appellee Gene Musick as Commissioner of Precinct 2.

Appellees filed a motion for summary judgment seeking a declaration that appellee Musick was the duly appointed County Commissioner of Precinct 2 and entitled to that office until the 1988 General Election. Rice filed a motion for partial summary judgment declaring him to be the rightful incumbent of the office of County Commissioner of Precinct 2, and for a writ of mandamus requiring appellees "to restore him to that position." As earlier noted, the trial judge granted appellee's motion and denied Rice's motion.

Rice urges two points of error, claiming the trial court erred in granting appellee's motion and erred in denying his motion.

Rice contends that his appointment was valid under the 1985 Texas Election Code and Tex.Rev.Civ.Stat.Ann. art. 2341 (Vernon 1971). ¹ On the other hand, appellees argue that Rice's appointment was effective only as to McCullar's unexpired term ending on December 31, 1986, citing Dobkins v. Reece, 17 S.W.2d 81 (Tex.Civ.App.--Fort Worth 1929, writ ref'd); Parker v. Nobles, 496 S.W.2d 921 (Tex.1973). Appellees also rely on Texas Attorney General's Opinion No. 0-6300 (1944). Under these authorities, appellees contend that Musick's appointment entitled him to hold that office from January 7, 1987, until the 1988 General Election.

All parties to the appeal agree that the county judge of a county in which a vacancy occurs in the office of county commissioner is authorized under article 2341 to appoint a suitable person to fill the vacancy until the next general election. Appellees, however, contend that no vacancy existed in the county commissioners' office for the term beginning January 1, 1987, at the time of Rice's appointment, but if it did, under the authority of Dobkins and Parker, the appointment of Rice for a term extending until the 1988 General Election was void.

In Parker, a direct appeal, the Supreme Court affirmed the trial court's judgment refusing to enjoin the Potter County Commissioners' Court from appointing T.L. Baker to the office of sheriff of that county. The facts in that case were these: P.G., an incumbent sheriff, sought re-election. He was unopposed in the general election held on November 7, 1972. P.G. died on November 3, 1972, but his name remained on the ballot. Because of the votes received by the deceased, the commissioners' court in its canvas of the election returns certified that P.G. won the election. On November 20, 1972, the commissioners' court appointed Baker as sheriff for the unexpired term ending December 31, 1972, and "stipulated in this case that it intended to appoint [Baker] to the term beginning January 1, 1973 and extending to [the November 1976 general election]." Appellants contended on appeal that a deceased person is an "ineligible candidate" under former article 1.05 of the Texas Election Code. ² The appellants in Parker argued that they were denied their right to elect a sheriff in violation of the state and federal constitutions. The court rejected these contentions, and pointed out that former article 1.05 of the Election Code contained an exception to its prohibition, stating "except as provided in article 8.22." ³ Former article 8.22, in force when Parker was decided, read in part:

(a) If a nominee dies ... before the election, ... his name shall be printed on the ballot and the votes cast for him shall be counted and return made thereof; and, if he shall have received a plurality of the votes cast for the office, the vacancy shall be filled as in the case of a vacancy occurring after the election. Act of June 18, 1967, Chapter 723 § 32, 1969 Tex.Gen.Laws, 1858, 1901, after several amendments repealed by act of May 11, 1985, Chapter 211 § 9, 1985 Tex.Gen.Laws 1076. (Emphasis ours.)

The gist of appellant's argument in Parker was that the statutory vacancy declared by article 8.22 of the former code was void "because [the statute] infringes upon the right of franchise." Parker, 496 S.W.2d 921 at 924. The Supreme Court rejected this contention.

The parties before us seemingly misread Parker. Appellees cite it in their reply brief as supporting their position while appellant Rice attempts to distinguish it factually from his case. In our view, Parker lends support to Rice's cause, not appellant's. Judge Daniel, writing for the unanimous court in Parker, upheld the constitutionality of the provisions of former article 8.22 as applied there. The court alluded to Maddox v. York, 21 Tex.Civ.App. 622, 54 S.W. 24 (1899), affirmed, 93 Tex. 275, 55 S.W. 1133 (1900), for the purpose of demonstrating that the Texas Supreme Court has for a number of years adhered to an interpretation of applicable constitutional and statutory provisions, in circumstances where a candidate dies after the election but before the term of office he was seeking commenced, that the death of the candidate created a "constructive" or "virtual" vacancy. Unlike Maddox, in Parker the death of the candidate occurred before the election. However, in both cases the candidate's death occurred and the appointment was made before the commencement of the term won by the deceased candidate.

Appellees claim that under the authority of Dobkins the appointment of Rice to serve two terms ⁴ is ineffective. Rice argues that the decision in Dobkins is no longer authoritative, and that if it is, it is inapplicable here.

In Dobkins, one Jake Wright, the incumbent sheriff of Cooke County, having been elected to that office in the 1926 General Election for a term ending December 31, 1928, was nominated and re-elected in the general election conducted on November 6, 1928, for a term of two years beginning January 1, 1929, and ending on December 31, 1930. Wright died on December 12, 1928, and on December 14, 1928, the commissioners' court appointed Dobkins as sheriff by an order reciting in part, "to fill the unexpired term of said Jake Wright, and until his successor has been duly elected and qualified as provided [by law]." On January 2, 1929, a reconstituted commissioners' court appointed Reece as sheriff. On the same day, Dobkins filed suit against Reece to enjoin him from interfering with Dobkins' discharge of the duties of the office of sheriff. The trial judge issued a temporary restraining order against Reece and apparently issued a temporary injunction extending the restraining order, but later, on Reece's motion, dissolved the temporary injunction and denied the injunctive relief sought by Dobkins. The Fort Worth Court of Civil Appeals affirmed that judgment. In so doing, the Court held that the commissioners' court order dated December 14, 1928, purported to appoint Dobkins to a term of more than two years, and therefore was void because it contravened the provisions of TEX.CONST. art. V, § 23 (1879, amended 1954), which provided for a two-year ⁵ term of office. In so holding, the court said, "[Dobkins] cannot be elected for two terms at the same election, a fortiori, he cannot be appointed for two terms, or a part of one term and whole of the succeeding term at one and the same time." (Emphasis ours.) The court then stated The court in Dobkins discussed several decisions ⁶ by the supreme courts of other states which held, in effect, that when a public officer elected to succeed himself dies before the expiration of his current term of office, a vacancy occurs at his death only as to the unexpired term and the vacancy in the "new" term occurs when that term commences. A cursory reading of two of those decisions ⁷ reveals that the decisions were based on construction of state statutes then in force. In any event, as we read Dobkins, the court held that...