Texas Advisory Opinions November 24, 1986: AGO JM-579 (November 24, 1986)

No. JM-0579 (1986).

Office of the Attorney General State of Texas

Dear Mr. Morales:

You inquire about the date when the person elected justice of the peace in the November general election should take office. You inform us that the incumbent was appointed to fill a vacancy in the office and ask whether the newly elected individual will take office on January 1, after he is sworn in, or immediately after he is declared the winner in the November general election.

Article 2355, V.T.C.S., provides that the commissioners court shall have power to fill vacancies in the office of justice of the peace, "and the person chosen shall hold office until the next general election." V.T.C.S. art. 2355; see also Tex. Const. art. V, s 28. Article 17, V.T.C.S., states more specifically when officers elected at a general election take office:

The regular terms of office for all elective state, district, county and precinct offices of the State of Texas, excepting the offices of Governor, Lieutenant Governor, State Senator, and State Representative, shall begin on the first day of January next following the general election at which said respective offices are regularly filled, and those who are elected to regular terms shall qualify and assume the duties of their respective offices on the first day of January following their election, or as soon thereafter as possible. Persons elected to unexpired terms in the various state, district, county and precinct offices shall be entitled to qualify and assume the duties of their respective offices immediately upon receiving a certificate of election, which certificate shall be issued immediately following the official canvass of the results of the election at which they were elected, and they shall take office as soon thereafter as possible. (Emphasis added).

V.T.C.S. art. 17. Thus, a person elected at the general election to fill an unexpired term takes office as soon as he can qualify after the election, while a person who is elected to a new term beginning January 1 may not qualify or assume the duties of office until that date. See Attorney General Opinions MW-521 (1982); M-742 (1970).

The candidate elected to a new term has no right to serve any portion of the term which ends December 31. Ex parte Sanders, 215 S.W.2d 325 (Tex.1948); Anderson v. Parsley, 37 S.W.2d 358 (Tex.Civ.App.--Fort Worth 1931, writ ref'd). The appointed incumbent will in such case continue to hold the office from the general election until the newly elected justice of the peace qualifies on or after January 1. His continuance in office is required by article XVI, section 17, of the Texas Constitution, the "holdover" provision, which states that

[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.

Tex. Const. art. XVI, s 17.

Attorney General Opinion M-742 (1970) explains the apparent inconsistency between article 17, V.T.C.S., and the constitutional and statutory provisions which specify that persons appointed to a vacancy shall serve until the next general election:

The primary purpose and intent of those provisions of section 28 of article V and article 2355, which specify that persons appointed to vacancies in the offices named therein shall serve until the next general election, was not to vacate the office upon that date but rather to establish the policy that the people shall fill the office by election at the earliest opportunity.

Attorney General Opinion M-742 at 4 (1970).

The answer to your specific question depends on whether the present term of office ends on December 31 following the November general election or continues into the next year. See generally Attorney General Opinion JM-558 (1986). If the present term of office ends on December 31, the newly elected justice of the peace should qualify and assume the duties of his office on January 1 or as soon thereafter as possible. If the present term of office continues into the next year, then the person who wins the general election has been elected to the unexpired term of the office, and he may qualify and assume the duties of office "immediately upon receiving a certificate of election...." V.T.C.S. art. 17. See Elec.Code ss 67.001-67.006 (canvassing of local election returns); s 67.016 (issuing certificate of election).

Article 17, V.T.C.S., provides that a person elected to the unexpired term of the office of justice of the peace may qualify immediately upon receiving the certificate of office and shall take office as soon thereafter as possible. A person elected to a new term of justice of the peace shall qualify and assume the duties of office on the January 1 following his election or as soon thereafter as possible.

Very truly yours,

Jim Mattox Attorney General of Texas

Jack Hightower First Assistant Attorney General

Mary Keller Executive Assistant Attorney General

Rick Gilpin Chairman, Opinion Committee

Prepared by Susan L. Garrison Assistant Attorney General