*1 mandamus, petition for motion or writ of again requesting prejudice to
without relator appeals from the court of
relief oppor- after the trial court has had an
tunity rulings. to reconsider its
The STATE Texas ex rel. Karen
ANGELINI, Relator, HARDBERGER,
The Honorable Phil
Respondent.
No. 96-0643.
Supreme Texas.
Argued Aug. Aug.
Decided *2 general
ed in the November election and will 1, 1997, be January entitled to take office on years. for a full Believing term of six Justice Hardberger’s resignation to be effective eight days statute after the Governor re- 28, 1996, resignation, ceived the or June appointed Angelini Governor Karen to fill the unexpired Hardberger’s term of Justice of- fice, general until the next election. See 201.023. Justice Hardber- Tex.Elec.Code ger By has refused to vacate his office. writ warranto, quo the State seeks to have the Angelini may office declared vacant so that assume the duties of the office. A quo writ of warranto an extraor dinary remedy disput available to determine questions proper person ed about the entitled public to hold a office and exercise its func Owens, tions. State ex rel. R.C. Jennett v. Wood, Austin, Randall Buck Robert J. has Antonio, Myers, Austin, Doug Ray, San W. jurisdiction original conferred on this Court for Relator. quo to issue writs of warranto. Tex.Gov’t Bowen, Koebele, Stephen Stuart W. P. 22.002(a); V, § Tex. Const. Morales, Austin, Dan Respondent. past We have on two occasions re quired parties seeking quo warranto to first ENOCH, Justice, opinion delivered the of pursue claim in their district court. See PHILLIPS, the Court which Chief Martineau, State ex rel. Todd v. Justice, HECHT, CORNYN, OWEN (1943) 363, 171 (dismissing quo S.W.2d 856 ABBOTT, Justices, join. warranto to determine whether individual Special Judge was entitled to original This is an proceeding for writ of Court); 94th District rel. State ex McCall v. Texas, quo warranto. The State of on rela- Manry, 118 Tex. appointee, tion of the Governor’s An- Karen (dismissing quo per warranto to determine gelini, seeks a declaration that the Honorable judge). son entitled to hold office of district Hardberger Phil has vacated his office as Appeals Justice of the Court of presented compel Here we are Fourth District of Texas. Because we con- ling reasons to exercise our discretion to grounds clude on constitutional that Justice requiring decide this matter without first Hardberger yet has not vacated his First, presentation to district court. and that there will no be his office time is the essence because two candidates until the effective date of his Hardberger’s unexpired for Justice term on deny quo the writ of warranto. Appeals the Fourth Court of have been 20, 1996, By placed letter dated June on the ballot for the Hardberger advised the Governor of his in- in November. The candidates should know resign Second, tention to his office effective possible. their status as soon as Hardberger The term Justice State contends that Justice expire improperly holding office does not until December over office and his Hardberger but Justice is a candidate actions as on the Fourth Appeals Finally, for election to the office of Chief Justice of are invalid. there are no Appeals. the Fourth disputed Because he is issues of fact. In such circum stances, unopposed, will be elect- is not unusual for us to exercise (h) by general may law jurisdiction original extraordi- our to issue person nary limit the term served requiring that the issues writs without fill a appointed courts. See first determined the lower Hannah, period or district office to a 633- in a state LaRouche *3 (Tex.1992) otherwise ex- before the vacant term (exercising jurisdiction ends original 34 office, or, before the mandamus); pires for an elective Bayoud, in v. election Sears vacancy is (Tex.1990) (same). at which the to be next election To filled, appointment made on or if the is presentation the trial delay this case for general the preceding after November appeals appeal to the court of court succeeding term of the election to all would be unfair concerned. is the Governor office of Governor and succeeding at that to the elected II term. gives Texas Constitution to the The (i) section, expira- the For of this power by appointment Governor the fill term of or the creation of a tion of a office higher in Article vacancies offices. new office constitutes V, provides: 28 of the Section Constitution Const, IV, plain § art. 12. As is Tex. judges in the of the Vacancies office of V, 28, and of Article Article the text Section Court, Ap Supreme Court of Criminal IV, 12(g), grants Section Constitution peals, Appeals1 the Court of Civil and the power appoint- interim to make Governor by Courts shall filled the Gov District succeeding general next elec- ments to the succeeding ernor until the next General tion. Election; ... Const, in V, Hardberger indicated his § has also 28. See Tex. V, resignation letter that he vacancy § 2 (providing that a fully and to dis- intends to remain of the the office of Chief Justice or Justice 1,1997. January charge his duties until Bar-
Supreme by appointment is to be filled circumstances, change ring general “until elec- some the Governor the next officers”); upon vacant office will become (providing § tion for state id. resignation, January date of his Judge of the the effective that a office of 1,1997. Appeals to be filled Criminal appointment by the Governor “until the next election”).
succeeding general
Article
A
gives
power
Section
also
Governor the
Hardberger,
claims
that Justice
State
by appointment
to fill
or
vacancies
state
intent,
expressed
his
cannot deliver
whatever
district offices:
resignation in June
to be
his letter of
(a)
12.
All
or dis-
Sec.
vacancies
State
the Texas
effective
because
offices, except
Legis-
trict
members of the
vacancy in his office
Election Code creates a
lature,
otherwise
shall
filled unless
eight days
his letter of
later than
after
no
provided by
by appointment
law
of the
by the Governor.
resignation is received
Governor.
points
201.023
The State
to section
(b)
appointment of
made
An
the Governor
provides:
Election
Texas
which
during
shall be
a session
the Senate
If an officer
whether
submits
advice and
of two-thirds
with the
consent
immediately or at a
to be
future
effective
present.
of the Senate
date,
on the date the
occurs
appropriate
accepted
day
authority
eighth
after the
in offices
(g)Appointments
vacancies
receipt
authority,
by the
which-
people
continue
date of its
elective
shall
is earlier.
until the next
ever
Appeals
be construed to
Appeals
Courts
of Civil
shall
Courts of Civil
are now the
Courts
V,
Appeals."
Appeals.
provides
all
the Courts of
Article
mean
statutory
"constitutional
references
added).
(“When
Tex.Elec.Code
the Constitution fixes the tenure of a
short,
the State would have us
beyond
read sec-
civil
it is
tion
ousting
201.023 as
tenure.”);
Fitzger-
to affect the
from his office months before he intends to
Kuppinger,
ald v.
163 Neb.
79 N.W.2d
vacate the office.
(1956) (constitutional
Neither the statute nor
provision
stat-
permits
the Texas Constitution
such a con-
circumstances under which
ex-
struction.
legislature
ists are exclusive
pow-
has no
grounds);
er to add other or different
State
Section 201.023 does not create an
Thompson
ex rel.
Seigler,
230 S.C.
actual
in office. That section and
(legislature
S.E.2d
201(b)
Subchapter
others in
deeming vacan
*4
provide conditions for removal of constitu-
purposes
for
cies
of Title 12 of the Election
authority
tional officer unless
for such action
application
are limited in
to that title.
constitution);
is found in the
67 C.J.S.
specifically
Section 201.021
states:
Offi-
§
(“Ordinarily,
legislature
cers
title,
For
this
provide
for the removal of officers
prescribed by
office occurs at the time
constitution,
protected by the
unless authori-
subehapter.
ty for such action is found in the constitu-
§
Tex.Elec.Code
201.021.
add-
tion”).
ed).
face,
expressly
On its
section 201.023
Drake,
In Eades v.
160 Tex.
defines the
time which a
occurs
(1960),
rejected
specifically
S.W.2d 553
we
as
resignation only
after
for
of initiat-
attempt by
unconstitutional an
Legisla-
process
the electoral
to fill that
judge’s
ture to limit a
constitutionally pre-
The dissent contends that section
There,
scribed term of
attorney
office.
reasonably
201.023 could
be read to oust
sought
requiring place-
a writ of mandamus
Hardberger
Justice
from office because of
primary
ment of his name on the
ballot as a
prospective
resignation.
his
announced
judge
years
candidate for district
two
after
However,
reading,
under that
section 201.023
judge
the first
was elected to serve
that
would
restrict
the tenure
creating
district court. The statute
the dis-
duly
of a
Having
elected officeholder.
won
provided
trict court
that
the first elected
election to the court in
Justice Hard-
judge
two-year
would serve a
term. The
berger is
years
entitled to serve for six
un
writ, holding
part
Court denied the
that the
dies,
constitutionally
less he
removed from
calling
two-year
of the statute
for a
term was
office, or leaves of his own accord. While an
void because it violated the constitutional
justice
appellate
may
this State
be consti
provision
four-year
for elective
terms for
tutionally
reasons,
removed for several
such
judges
permanent
constitutional district
persistent
as willful or
pro
violation of rules
Eades,
courts.
future is not If Legislature, by one of them. his created by voluntary resignation, service is ended he three new offices of on both courts of right controls the appeals provided to decide when he leaves. that the terms of office Holm, ex rel. State Dosland v. 202 Minn. of those first elected to the office were to be 279 N.W. two-year, The Constitu determined lot for either a four- extended, permits tion year, six-year his service to see newly term. The elected XVI, justices sought but not truncated. directing mandamus that the Opinion Supreme the Justices Chief Justices the two courts refrain from Cf. Court, (Me.1975) Judicial drawing Relying 343 A.2d lots for terms of office. Eades, vacant, has the exclu- granted We the Governor mandamus. held authority the Judi- calling sive under drawing of for constitutional the statute lots appoint a to serve cial Article to successor of office terms was void because violated By deeming until next provision constitutional for six- elective Hardberger when to occur justices. year appeals terms for court of Id. thereby merely man- his submits Draughn suggest at 730. Both Eades and dating fill has an election may constitutionally that section 201.023 not occurred, infringes yet section 201.023 be read to oust Justice from his upon power. resigna- of his office before effective date tion. “[tjhe Texas Because Constitution suffers judi- surplus provisions filling
B vacancies,” 1 BRAden, cial GeoRGe D. hand, reading On other the State of Texas: An Constitution Analysis Compaeative 201.023, urged by Hardberger, as Annotated (1977), “creating” vacancy only possible it is the Governor’s purposes of pointment authority triggering an afoul of could be modified election runs another Legis- grant some provision of the Texas Constitution. other *5 only provision vacancy for lature. The other of the Con- 201.023 would deem a triggering speaks appointment an of of before is an stitution that the there justices in appeals in In court is located the actual office. these circum of Article, stances, part: provides which in section 201.023 would Article Executive violate V, Constitution, 28 (a) Section of the Texas offices, in All vacancies State or district “[vjacancies which mandates that ... shall except Legislature, of shall members the by the the be filled Governor until next suc provided be unless law filled otherwise ceeding General Election.” by appointment of the Governor. V, § 28. (b) appointment An of the Governor made during a of shall session the Senate actually When Justice and of the advice consent two-thirds office, leaves he will vacate his in office the present. of the Senate Indep. constitutional Leander sense. See b) IV, 12(a, v. Supply Sch. Dist. Cedar Park Water added). By including language “unless 908, (Tex.1972) (words Corp., 479 S.W.2d 912 12(a) by law,” provided otherwise interpreted in used constitution are to be as subjects power appointment the Governor’s them). people generally understood Cf. degree legislative modifi- least some Marr, 412, Youngblood v. Ind. 253 254 argue, perhaps, cation. could that the One 868, (1970) (legislature N.E.2d 871-72 cannot ap- Legislature may restrict the Governor’s declare under the constitution pointment power by enacting election laws exists); when in fact no State ex rel. deeming prior to occur to the true Friederich, Foughty v. 108 N.W.2d 690- (N.D.1961) (legislature may 91 not create a vacancy in the sense conflict Article potential constitutional when one between exist); V, naturally does not Friedman Lew 12 Article 28 has been v. Section Section is, case, In early 143 Pa.Cmwlth. 598 A.2d one court examined before. (words in given appeals must constitution stated dicta that Judicial meaning, popular provision controlling common or the Article is because it their meaning “vacancy” appointment plain place specifically “[a] is or deals with the unfilled, position judges, provision or empty, which unoccu while the Executive Article pied”); Bilbrey, generally ex v. 878 deals with state and district offi State rel. Witcher Valentine, cers. ex rel. v. (Tenn.Ct.App.1994) See State Peden (“[Tjhe (Tex.Civ.App. Constitution of Tennessee uses the S.W. —Fort refd). ‘vacancy’ ordinary writ Later authorities term its sense.... Worth Thus, analysis. more employed a vacant is one that is unoccu have subtle office incumbent.”). Sturns, (Tex.App.— pied without the White v. S.W.2d 372 When n.r.e.), plaintiff Austin writ refd appointees that the Governor’s be confirmed appointed judge by had been district an out- by two-thirds of the Senate. The court of going governor, prior but to Senate confirma- no, appeals concluding answered tion the new Governor had obtained a return provided by language only “otherwise law” ap- the nomination and had made new Legislature change allowed the ap- pointment. sought Plaintiff to have himself pointing authority for an oth- judge declared on the basis that Article requirements er of Section and to that require Section 28 did not Senate confirma- extent provided for offices not for in the judicial appointees. tion of The court of Thus, Constitution. Id. at 1020. while the appeals rejected argument on several Legislature provided could have that mem- grounds. It practice looked to the consistent Highway appoint- bers of the Commission be governors of all submitting Governor, ed someone other than the pointments confirmation, as well appellate judges. could not do so for This Legislature’s clarify failure to the issue writ, grant expressly adopt- Court refused to despite constitutional amendment two other part appeals’ the first court changes to Section 28 since 1876. Id. at 376. holding per opinion. its curiam Denison primary however, holding, Its was that no State, conflict existed between the two constitution- prohibits Denison from provisions al because the confirmation re- circumventing appointment the Governor’s additional, quirement was an redefining meaning of the con- contradictory, requirement: not a “vacancy.” stitutional term In the teeth of a theory totally We hold that Sturns’ with- specific provision mandating out argument solely merit because it is an that the Governor shall fill vacancies in this silence, is, V, § because by appointment, does not state that the advice consent *6 resigning justice cede to a the discretion to required, of the in Senate are it is conflict resignation IV, time that in a manner that in- specifically with art. 12 which does
require
vacancy by
such action
stead fills that
the Senate. We
election. When
think, however,
that
purposes
this circumstance
read
deem a
for
of elec-
merely
propo-
lends conclusive force to the
tion,
201.023
possible,
sition that no conflict is
and cer-
abridges
power
the Governor’s constitutional
tainly
express
not found in the
terms of
appointment
when an officeholder tenders
provisions, leaving
two constitutional
resignation
a
before a
election to be
scope
operation
fall
of the funda-
effective after the election.
mental rule of construction that no conflict
provisions
was intended and that the two
Ill
operate
conjunction.
were meant to
in
A
Sturns,
origi
at
pressing
respective arguments,
their
nal).
attorney general opinions
Two
accord
both sides look to this Court’s decision in
Op.TexAtt’y
with,
holding.
See
Gen.
Texas Democratic Executive Comm. v.
JM-116K1990),
Nos.
Rains,
There,
liam P. Clements appointment “the arguing that claiming power, that Esquivel’s trump people’s process does not governor acceptance without rejected judges.” that their triggered. right The Court to elect was prin- not a had no holding generalization that the Governor argument, 496. This broad While resignation, and conclusion. accept cipled choice but matter provide as a for the elec- consequently a existed indeed does Constitution Election Code. the Gover- judges, law under the it also authorizes tion of in all controls a Hardberger claims that Rains when interim successors appoint nor that it is asserts particulars, while the State vacant. Section judicial seat becomes for, as- never inapplicable because the Governor circumstances clearly specifies the Esquivel’s letter created of, appointments. serted interim such the duration resignation prospective vacancy prior cannot be language This constitutional date. unarticulated to some by resort trumped elections, not from deduced preference for case, parties like the parties to this Both spirit of the from the provision but particular proceeded have and the Court the framers Had document as whole. Legisla- assumption that the the unexamined the Gover- to limit wanted our Constitution may to occur when deem ture circum- powers in these appointment nor’s submitted for special stances, for they provided have could focus Rains triggering an election. The seats, they judicial as to fill vacant elections any discre- had on whether the Governor was seats, legislative see did for vacant resignation, while the tion to 12(a), 13; IV, § Ill, legisla- here has been on whether focus for indeed done neighboring state has our merely real or tively-triggered was V, § (provid- judges. La. parties’ arguments, Both constructive. to fill vacancies think, special elections the critical constitutional have missed offices). is, That whether section question.
unconstitutionally abridges the Governor’s appointment power by deeming a vacancy in [*] n n n [*] n triggering an election does not the Constitution We hold *7 vacancy in office. there is an actual before An- Karen appoint empower the Governor in circum- that it does the conclude We unexpired Hardberger’s gelini to Justice presented here. stances 28, of 201.023 1996. Section as of June term brought been Had the constitutional issue oust Justice does not the Election case, in or had it been attention that to our the date on office before Hardberger out of by during our consideration uncovered us January to vacate his he intends which Rains, address and have had to we would the grants to Gov- 1,1997. The Constitution Eades, at that time. See resolve the issue appoint a successor power to ernor the (mandamus place at 556-57 of- unexpired term of statute un- denied when candidate on ballot on Jan- vacant that office becomes fice when constitutionally of office because limited term 1,1997. uary legal election for be no there could quo warranto. deny the writ of We office). happen, Merely because that did examining surely not foreclosed we are any now under applying our Constitution Justice, by SPECTOR, joined judicial construction. principle of
rational
GONZALEZ, Justice, concurring.
B
judgment, but
majority’s
I concur
holding that section
join its
rejects our conclu-
concurring opinion
The
infringes the Governor’s
unconstitutionally
that section 201.023
sion
authority.
appropriate
accepted
resignation is
the date the
occurs on
added).
appointment power. That
in-
majority’s opinion
conclusion is
The
fails
duty.
principles
consistent with sound
of construc-
tion
a
recent decision of this Court.
Rains,
recognized
As
Title
of the
amendment,
a
Without
201.023,
including
Election
section
“clearly
protect
right
was intended to
pointment power of the
does not
Governor
the voters of this state to choose their
trump
people’s right
judges.
to elect their
Rains,
elective
at
officers.”
majority
The
holds that Justice Hardber-
right,
The source of that
like the Governor’s
ger’s prospective resignation does not create
appointment power, is our Constitution. trig-
a
in his office for
V,
4, 6, 15,
18(b).
§§
Tex. Const. art.
election,
gering an
at least until November
previous
provided
While
constitutions
holding
1998. 932
That
can-
Governor,
see
appointment
judges by
V,
§§
(1861);
Tex. Const. art.
not be reconciled with this Court’s decision in
art.
(1869),
our current constitution confers
Texas Democratic Executive
Comm.
See Tex. Const.
power upon
people.
Rains,
under section 201.023 the Election Because, however, majori- agree I Construction present ty’s holding that it did not create a concurring opinion that agree I with the I concur appointment purposes, for “conclusion is inconsistent with the Court’s judgment deny of the Court and would [statutory] principles of construction.” sound of quo the writ warranto. J., concurring). (Spector, at 495 932 S.W.2d nor Despite the that neither fact State BAKER, Justice, dissenting. argued Parties’ I.The Contentions of the Election Code is uncon- 201.023 Texas parties agree that Justice Hardber- stitutional, it When declares so. ger’s resignation letter created a statute, evaluating a the Government Code trigger- of the Election thus requires presume ing an this for the re- November constitutionally. has acted TexGov’t maining years Hardberger’s four of Justice Fuller, 311.021; Indem. Co. v. Travelers however, They dispute, term. whether Tex.Sup.Ct.J. 892 S.W.2d letter, ex- despite Justice (1995). This Court’s function not to search resignation have his pressed intent Instead, statutory liti- is the defects. 1, 1997, effective a constitu- created gants’ burden to demonstrate days receipt, vacancy eight tional after its Fuller, at infirmity. 850. Our 892 S.W.2d appoint an allowing thus the Governor to in manner duty legislation construe V, immediate successor. See Tex declaring a that, if all avoids possible, § 28. Key See W. statute unconstitutional. Life Ins., v. State Bd. Ins. Co. argues that an The State elected official’s Of (1961); City State v. vacancy within letter creates a Austin, days receipt eight regardless its of its duty discharge can believe we purported date. Justice Hardber- effective in this case. ger argues “vacancy” term in section that the merely vacancy oc- 201.023 defines when a process.
curs for
of the electoral
Constitutional Scheme
IV.The
(“[flor pur-
Statutory Implementation
Tex.Elec.Code
title,
occurs
poses
this
in office
of the Texas Consti-
Article
Section 28
subehapter.”)
prescribed
at the time
provides:
tution
added).
I am
convinced
judges
the office
Vacancies
Hardberger’s interpretation
Court,
Ap-
the Court of Criminal
*9
Supreme
the Election Code would
Appeals and the
of Civil
peals,
Court
infringe
appoint-
of
on the Governor’s
by
filled
the Gov-
Courts shall be
District
Accordingly,
grant
I would
the State’s
ment.
Election.
until the next General
ernor
request
quo
for
warranto relief.
authority, Governor Bush
this
Under
Unconstitutionality
II.Unassigned
vacancy in Place
Angelini to fill the
pointed
Elec-
Appeals. The
Beyond
disagreement
the Fourth
my
with Justice
provides
a
in office
question
Hardberger’s position, I
the Court’s
tion Code
any
eight
as
one
resolving
dispute.
may
The
occur
the result
method of
(1)
(2)
death,
201.022;
§
resignation immediately, contending
events:
201.023;1 (3)
(4)
removal,
201.024;
§
§
given
proper resignation,
ac-
an otherwise
ceptance
may
accept
of another office that
Governor had no
discretion but to
it.
(5)
201.025;
Rains,
simultaneously,
agreed.
§
held
declara- We
Jones,
(Tex.1963).
unexpired
368 S.W.2d
Un
Persons elected to
terms
II,
...
... shall
der Article
our Constitution’s
various state
offices
be enti-
express separation
provision,
qualify
powers
tled to
and assume
duties
Legislature
immediately
abridge
respective
im
...
or otherwise
their
offices
pair
prerogatives
following
the constitutional
the official canvass of the results
elected,
See, e.g.,
they
Department.
Executive
v.
election at which
were
Rose
State,
they
(Tex.Crim.App.
752 S.W.2d
shall take office as soon thereaf-
1989);
Blackwell,
possible.
State ex rel. Smith v.
ter as
97, 104 (Tex.Crim.App.1973);
Walker
words,
In
the candidate elected at
other
Baker,
v.
196 S.W.2d
5,1996 general
may, if he
November
(1946). Because
no
there is
constitutional
chooses,
Jus-
she so
assume
before
favoring
appoint
basis for
over
elections
Hardberger
depart
tice
to
intends
on Janu-
ments,
cannot do so
stat
ary 1,
Democratic Execu-
Texas
ute,
exactly
which is
what Justice Hardber-
Rains,
tive
v.
Comm.
756 S.W.2d
ger’s interpretation of
201.023 would
(Tex.1988)
C.J.,
(Phillips,
dissenting). Under
allow.
circumstances,
these
right
he
contention that
has the unilateral
plausible
If a
alternative construction of a
resignation is
timing
of his
determine
statute
that will
a court
exists
allow
to avoid
Also,
plainly untenable.
our consideration
problems,
adopt
we will
result,
potential
as Justice
Public
construction.
Citizen
United
argues
agree,
appears
and the Court
is not
Justice,
440, 442, 109
Dep’t
States
491 U.S.
statutes,
merely hypothetical.
construing
2560-61,
(1989);
S.Ct.
harmony Constitution, -with the it adds but
certainty Additionally, to the law. it carries
out what I believe is Legislature’s pur-
pose parity between the Governor and the
officeholder vis a vis the Constitution. The holding, hand, may
Court’s on the other re- ease,
solve this but leaves room for future
guess This, political maneuvering. work and believe, is unfortunate.
Y. Conclusion reasons,
For grant these I would the writ quo warranto and Angelini declare Karen occupant
to be the lawful of Justice Hardber-
ger’s 14, 1996, July former effective
the date she took the oath of office.
I respectfully dissent. FLORES,
Diana BANNER, Judge.
The Honorable Paul
No. 96-0916.
Supreme Court of Texas.
Oct. Dallas, Wightman,
Robert R. appellant. Garcia, Domingo Joseph A. Corteguera, R. Dallas, appellee.
PER CURIAM. presiding judge of the First Adminis- Region assigned Respondent, trative Judicial subject judge provisions a former 74.053(d) of the Texas Government to sit the 101st District Court of County. Respondent Dallas overruled Diana timely objection Respondent Flores’s filed visiting judge. aas Flores seeks mandamus ordering Respondent relief or- vacate his underlying disqualify ders case and to