Untitled Texas Attorney General Opinion ( 1986 )

November 24, 1986
Honorable Richard G. Moral~zs.Sr. opinion No. m-579
Webb County Attorney
1104 Victoria Re: Time at which a newly elected
Laredo, Texas 78040 justice of the peace takes office,
when he is elected to a position
previously filled by appointment
Dear Mr. Morales:
You inquire about the adatewhen the person elected justice of the
peace in -theNovember 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 swrn 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.CrS. art. 2355; see also Tex. Const. art. V, 828.
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 Gowmor. 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 we elected to regular terms shall
qualify and ass,%e the duties of their respective
offices on the f?rst day of January following their
canvass of the results of the election at which
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Eonorable Richard G. Morales, Sr. - Page 2 (JM-579)
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 peruon 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.Zd 325 (Tex. 1948); Anierson v. Parsley, 37 S.W.Zd 358 (Tex. Civ.
APP. - Fort Worth 1931, ;fcc ref'd). The appointed incumbent will in
such case continue td hold the office from the general election until
the newly elected justice of the peace qualifies on or after January
1. His continuance in offLce is required by article XVI, section 17,
of the Texas Constitution, the "holdover" provision, which states that
[a]11 officers w:.t.hin
this State shall continue to
perform the dutjes of their offices until their
successors shall tieduly qualified.
Tex . Const. art. XVI, 917.
Attorney General Opinion M-742 (1970) explains the apparent in-
consistency between article 17, V.T.C.S., and the constitutional and
statutory provisions which sipecifythat persons appointed to a vacancy
shall serve until the next general election:
The primary Ilurpose and intent of those pro-
visions of sect:.on 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-.742at 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 cont:.nues into the next year. See generally
Attorney General Opinion Jlt-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. IE 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
p. 2591
Honorable Richard G. Moralt,s,Sr. - Page 3 (JM-579)
assume the duties of office "immediately upon receiving a certificate
of election. . . .II V.T.C.S. art. 17. See Elec. Code §§67.001-67.006
(canvassing of local election returns);- 967.016 (issuing certificate
of election).
SUMMARY
Article 17. T'.T.C.S., provides that a person
elected to the ,mexpired term of the office of
justice of the ptzacemay qualify insnediatelyupon
receiving the cer,tificateof office and shall take
office as soon thereafter as possible. A person
elected to a new term of justice of the peace
shall qualify an'1 assume the duties of office on
the January 1 following his election or as soon
thereafter as por,sible.
JIM MATTOX
Attorney General of Texas
JACK BIGHTOWER
First Assist&t Attorney Gt,neral
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Conrmittec
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2592