With apologies to Flip Wilson for the subject of this post.... JP office has a vacancy and the comm. ct. is fighting about whether or not it has to be filled. I have read JC 0140 which seems to indicate the filling of the position is dicretionary, reversing many years of opinion to the contrary. Does anyone have any experience with this issue? I tend to disagree with the opinion in JC 0140, especially when qualified candidates come forward and seek the appointment.
Thanks for your thoughts!

I think JC-140 is probably right, as far as it goes. One of the constables we quo warrantoed out of office tried filing a counterclaim that the commissioners court had a ministerial duty to appoint a successor upon vacancy if qualified candidates were available. Relying in part on JC-140, the court poured him out. I think that result is right for two reasons. First, section 87.041(a)(1) of the Local Government Code, authorizing the commissioners court to fill a vacancy in the office of justice of the peace, is permissive, not mandatory. Second, the result is not as nefarious as it may seem. If there are qualified candidates out there, they can apply to run to fill the remainder of the unexpired term (or the new term, if the old one is just about up). If there's a question about vacancy, they could even file a declaratory judgment action to determine the vacancy of the office (if the former officeholder died, that wouldn't be necesssary, of course). If you are firmly convinced the commissioners are shirking their duties by failing to appoint a successor, you could always file a removal petition against any one or more of them. We've been graced by such precious moments up here several times. Which only goes to prove that none of the sparring between Ms. Davis and you is truly correct -- people (whatever their worth) do want to live in Snyder and Amarillo, if for no other reason than to grab some fat county cash.

Scott,
Thanks for your thoughts. I just don't like the way the AG tried to reconcile the conflict between the consitutional section and the local govt. code. I can see the logic as it applies to a constable since that is not an office listed in the constitutional section cited in the AG opinion. However, suppose a county judge resigns or dies after taking office in Jan. According to the rational in JC 0140, the commissioners could refuse to make an appointment. Would that leave the office open until the next general election 2 years away? Seems like an absurd result. We can't have commissioners running around unsupervised for that period of time can we? Imagine the chaos I guess I just don't agree with the AG and am trying to rationalize my argument. Do you think the result in your case would have been different if it involved an office listed in Art. 5 Sec. 28 Tex. Const. instead of a constable?

The issue in our case was whether authority to appoint under section 87.041 creates a mandatory, ministerial duty. Based on the statutory language, bolstered by JC-140, the answer was "no." Since Vondy v. Uvalde County Comm'rs Ct. and the flurry of cases that followed it in the '80s, Texas courts have been wary of finding that a constitutional provision creates a mandamus-style obligation upon commissioners courts. Because I've been on the cramdown end of lawsuits seeking to resurrect that line of reasoning, I tend to resist it. Practically speaking, commissioners courts resist being forced to do things, too. So when they are forced to do them, those tasks generally are carried out poorly.

At the same time, your point is well taken that article 5, section 28(b) ought to be read to mean what it says. Thus, a purely constitutional mandamus (or declaratory judgment) action could bear fruit. The problem is a political one. Who wants to file it? There are no more politically unattractive people in my neck of the woods than the ones who have filed suit to resuscitate an inactive (and perceptibly unnecessary) office for the purpose of getting a county paycheck. Your ultimate fallback in advising your commissioners court, of course, is the time-tested wisdom that Attorney General opinions are not binding law. Thus, courts are entitled to (and often do) disregard them. Good luck either way.

All this while I was at a boring seminar Sorry I could not get in on this one before all the answers had been passed. Maybe I will have better luck next time. As for living in Amarillo or Snyder I have been to both and Midland and Lubbock are both slightly worse in my humble opinion.

The court voted 3-1 to make an appointment to the jp position. The only other jp in the county was asking for more clerical help so, instead of hiring another clerk, the court elected to hire another judge for the same price. The next issue will be the position of constable that goes with the new jp, as that office has been vacant for a while and to make matters worse, the other constable just resigned leaving that position open as well. Now maybe I can use the aforementioned AG's opinion to my advantage when it comes to the court not wanting to fill the constable positions. Ray, if I read you post correctly, we will take an affirmative vote over Midland or Lubbock anyday.

Most definitely. I have been to Snyder several times and enjoyed the area everytime. However, I will not be applying for constable. I understand that Potter County has several would be constables but I don't know whether Scott B would vouch as a reference.