Article V, Section 28 of the Texas Constitution ("Vacancy in Judicial Office")

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As amended November 6, 2001:

(a) A vacancy in the office of Chief Justice, Justice, or Judge of the Supreme Court, the Court of Criminal Appeals, the Court [sic] of Appeals, or the District Courts shall be filled by the Governor until the next succeeding General Election for state officers, and at that election the voters shall fill the vacancy for the unexpired term.

(b) A vacancy in the office of County Judge or Justice of the Peace shall be filled by the Commissioners Court until the next succeeding General Election.

Editor Comments

Neither of the state's highest courts have expressly held that Article IV, Section 12 requires senate confirmation of appointments made by the Governor under subsection (a) of this section.

However, the Texas Attorney General, in Tex. Att'y Gen. Op. O-1092 (1939), opined that: "There is no inconsistency in these two constitutional provisions. Section 28 of Article 5 merely provides that the Governor shall make the appointments mentioned therein; whereas, Section 12 of Article 4, in effect, provides that all appointments made by the Governor to State or District offices shall be subject to confirmation by the Senate."

—Attorney Steve Smith

Recent Decisions

  • State ex rel. Angelini v. Hardberger, 932 S.W.2d 489, 493-94 (Tex. 1996) ("In one early case, a court of appeals stated in dicta that the Judicial Article provision is controlling because it deals specifically with the appointment of judges, while the Executive Article provision deals generally with state and district officers. See State ex rel. Peden v. Valentine, 198 S.W. 1006, 1009 (Tex.Civ.App.–Fort Worth 1917, writ ref'd). Later authorities have employed a more subtle analysis. In White v. Sturns, 651 S.W.2d 372 (Tex.App.–Austin 1983, writ ref'd n.r.e.), the plaintiff had been appointed district judge . . . . Two attorney general opinions accord with this holding.")

Historic Decisions

  • White v. Sturns, 651 S.W.2d 372, 376 (Tex.App.–Austin 1983, n.r.e.) ("Not only is our construction of the two provisions mandated by the express terms thereof, but we find no indication that any amendment to art. V, since its original adoption, was intended to effectuate a departure from the established practice which has prevailed between 1876 and the present, whereby the Governor has routinely utilized art. IV, § 12 for the filling of vacancies in superior judicial offices, as well as other vacancies in State and district offices . . . , a usage which would have the effect of removing any doubt in the event a conflict did exist in the two constitutional provisions.")
  • Rawlins v. Drake, 291 S.W.2d 349, 350 (Tex.Civ.App.–Dallas 1956, no writ) ("[T]he vacancy provisions applicable to other offices and the provisions applicable to the offices of County Judge and Justice of the Peace differ materially. As to other offices, when vacancies occur the offices shall be filled by appointment 'until the next succeeding general election'; as to the offices of County Judge and Justice of the Peace, vacancies shall be filled by appointment by the Commissioners Court 'until the next general election for such offices.' (Emphasis ours.) It seems to us that the latter provision, including the phrase 'for such offices,' is plain and unambiguous.")
  • Ex parte Sanders, 215 S.W.2d 325, 326 (Tex. 1948) ("Relator insists that Judge Davis' appointive tenure of the office expired on and with Nov. 2, general election day, because Art. V. Sec. 28, of the Constitution of Texas, Vernon's Ann. St., provides that vacancies in office such as that resulting from the death of Judge Terrell 'shall be filled by the Governor until the next succeeding general election'. If that language had to be given the cold-letter interpretation that relator urges, the 37th District Court would be at a standstill from . . . . Only by thus construing these two sections of our Constitution together can the orderly process of government be preserved.")
  • Pierson v. State, 177 S.W.2d 975, 979 (Tex.Crim.App. 1944) ("Without district courts, the State and society, as we know and understand it, could not survive. . . . By the Amendment of 1943, the Legislature has provided for the orderly functioning of a district court, notwithstanding the death of the judge thereof and the fact that the vacancy caused by such death has not been filled by appointment or election. From what has been said, it follows that the Amendment of 1943 is valid, and that a judge of one district court assigned to preside over another district court upon the death of the judge thereof is valid and is subject to no Constitutional objection.")

Library Resources

Online Resources

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