Untitled Texas Attorney General Opinion ( 1958 )

THEATBYORNEYGE``````
OF TEXAS
AUNITINin. TEXANI
WILL WILSON
ATTORNRW GRNERAL
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October 23, 1958
Hon. John R. Coffee
County Attorney
Howard County Re: Date on which a per-
Big Spring, Texas son elected to fill
an unexpired term In
the office of County
Attorney Is entitled
,Dear Mr. Coffee: to take office.
You have requested an opinion on the following
question:
“When a candidate for the office of County
Attorney 1s elected to fill the unexpired term,
1s he entitled to take office ImedIately upon
qualifying after the general election in November
or does he take offlce on January lst?” I
Article V, Section 21 of the Conetltutlon provides
that*ln cam of vacancy In the office of County Attorney, the
Comla~ionera Court of the county ahall have the power to ap-
. point a County Attorney “until the next general election.” A
blmllar provision Is contained in Article 2355, ~Revlsed Civil
I Statutes.
Attorney General’s Opinion No. WW-426 (1958) held,
uiider slailar conetltutlonal and etatutory provisions, that a
pereon elected to an unexpired term In the office of Sheriff
la entitled to qualify and assume the office as soon as the
results of the election have been officially canvassed by the
Coraisalonars Court under Article 8.34 of the Election Code.
This holding al%o applies to the office of County Attorney.
In reaching the foregoing conclusion, both in Opla-
iolp HW-426and the present oplnlon, we have given consideration
to Article 17 of the Revised Clvll~Statutes, which reads In
i part as followa:
“Art. 17. Date to qualify.--After each
general election, those who are elected to the
various county and precinct offices shall quall-
fy by taklng the official oath, and entering upon
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i
Non. John R. Coffee, page 2 (VW-516)
rad usumlng the dutlea of their P8BVoCtlV8
offices on the flret day of Januarsr followl!%z
tie last gethera elective, or as s&on thora--
after 8s posrlblo. l * +
Ue are of the opinion that thla statute applier only to the
cOmmen0ementof regular term6 of office and does not apply
to the date on uhloh persona llbcted to fill unexpired terms
may aommb offloe.
Article 17.1s a codification of an adt of the
Legi818ture pasled in 1921 (Acts 1921, p. g6), which uas a
m-enactment of a prior act passed in 1917 (Acts 1917, p.
351) with a change In the date on which the electees wer4 to
take offloe. While the 1921 act does not expressly refer to
the 1917 act, It is In Identical language except for changing
th4 dat4 from the first day of becember to the first day of
and laaking one or two minor changes in wording. Both
In
JY 191 and 1921, as well a8 In 1925 when Art1010 17 vaf4 en-
acted a8 a part of the Revised Civil Statutes, the regular
tens of elective county and precinct offices was two yearo.
Prior to 1917 there had been no constitutional or statutory
provision ?ixing the date on which the regular term wae to
comaenoo. The absence of any provlslon fixing the oossnemce-
ment of the term was discussed In Tom v. ?3e
721 (Tei.Clv.App. 1915, error raf. 7TIni&% 2: :I%
noted Into possible dates which might be taken as the time at
vlrjch the regular term comenced, one being the date of the
l offloer80 qualification and the other being at the time the
return4 of the election iere osnvassed. The court stated that
It belimed~the better rule to b0 the date of canvassing the
retarnl but did not Wd’a flrmholdlng on the ques,tion. .’
Neither of these twb dates was corpletalp eatlb-
faotory for the beglnnlhg of a regular term. If the date of
qualif%oation was to be taken be the comnencemqnt of the torn,
the commencementand tenlnatlon of succeeding term could be
defemed b$ the nerly elected officer~s delaying to qualify
a8 soon a0 he was entitled to do so, thereby ruccesslvely and
cumulatively deforrlng the cosmncbment of rabobquent t4v.
On the other hand, adoption of the fiat4 of completing the’
election as the beglnalng of the term would result In in-
creasing or decreasing the .two-year term by a few da@, de-
* e pending on the date of the alectlon, which could range from
November 2 through November 8, and the corresponding date of
canvass.
Thls.was the state of the law when the Legislature
passed the 1917 act. There was a need for a~statute fixing the
beginning of regular terms on a definitely stated day not only
Hon. John R. Coffee, page 3 (~-516)
to eliminate the confusion as to which of the possible dates
mentioned In Tom v. Klepper was the correct one but also to
avoid the defects Inherent In each of those dates.%‘here was
not In 1917, nor is there now, any such need with respect to
unexpired terms. The data on which a person elected to fill
an unexpired term takes office cannot affect the duration
either of that term or of the succeeding full term. Where
the date of aommencementof the full term Is fixed at a sPOClf-
I~calendar date, the unexpired term ends on the date the suc-
ceeding full term begins. In the absence of a provlslon fixing
a speolflc date for commencementof regular terms, the unexplrad
term would be only for the remainder of the full term of the
elected predecessor and would not be affected by the date on
which the person elected to the unexpired term wan entitled to
take.offlce or did in fact aesume the office.
Statutes should be construed In the light of the
circumstances existing at the time of their enactment and the
evil sought to be corrected. Wortham v. walker, 33 Tex. 255,
128 S.W.2d 1138 (19 7); Texas & 1. 0. R. Co. V. Ra;;road COW
ml8slon, 145 Tex. 52 253 S.W. 2dfs6 m 34 T Dl t
-4, 8 164. The. intent of’the.Leg&latuie In en~ctl~*t~e
statute should be given effect even though to do so necessl-
tates a departure from the literal purport of Its tarms. See
39 Tex.Jur., Statutes, 8 95 and caues cited thereunder.
In the light of the foregoing discussion, we are
of the opinion that the Le&ikllature had In mind the beginning
of the full terms only when It enacted this statute and did
not Intend for It to apply to unexpired terms. There Is another
reason for concluding that the Legislature dld’not have unex-
pired terms In mind when the 1917 act was passed. Prior to
that act, unexpired terms in oountg and preclnct.offlces after.
the general election were either nonexistent or of such short
duration 48 not to warrant the attention of the Legislature.
Since the terms were for only two yeara, a new set of officers
was elected to the eucceedlng full terms at each general elec-
tion. IS the term of the newly elected officers commenced as
soon as their election was completed, there was no unexpired
term then remaining in an off160 In which a vaoancf had occurred.
If the full term’dld not begin untll.two years after the date
on which the elected predecesror had quallflad, there could have
been an qe%pind term of ~a few days still remaining after the
electlOn, results were declared, but In view of the well-known
fact that persons rarely lf ever aeek slection to terms of
such short duration It would be unreasonablr to assumo that
the Legislature had unexpired terms In mind when this statute
*a8 enacted.
After the 1917 act and until the time when the
terpls of county sad prscinct officers were Increased to four
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Hon. John R. Coffee, page 4 (WU-516)
years, there wae a brief unexpired ten after the general
election following a vacancy in the office--the Interval
bbtwoen the election and the first day of Deoomber, ex-
tende4 by the 1921 act to the first day of January. It would
have Won poerrlble for persons to run for and be elected to
those brie? unexpired terms. State ex rdl. Heck v. Ahlere
1 N&2& 531
L 3 (laont.sup.
215 S .U.2d ~325 that
Inactual uptrlence these terms were seldom If ever filled
by eleotion -&ndconsequently there was no real need for fixing
a tiPlo fo r lleoteo8 to take offlce.~Thls circumstance polnte
to the conclusion that the LegUlature In 1921 also did not
,havo unexpired texms In mind. Assuming that the Legislature in
1921 did take cognleance of theee unexpired term8 and Intended
to make the etatute apply to them, the result which the Legle-
‘~ lature Intended to acconplieh would have been to deprive the
person hlected to an unexpired term of the right to occupy
the office and to deny him any term at all, beoauee .the etat-
ute would not have permitted him to assume the offfce until
the date on vhioh the unexpired term ended and the new full
term began. Ye think It Is unreasonable to assume that the
Leglelatur4 Intended any such result, and If It had so ln-
$onded we think It would have expressed that Intent In mdre
explicit language than that used in the statute.
Noreover, we are of the opinion that an attempt
to make thl8 statute .applP to unaxplred terms’would have
rendered It unconatltutlonal ineofar as It related to unex-
pirod terms In office8 wherein the Constitution provided that
appointment8 to fill vacancies were to be made until the next
general election or the next general election for the office.
See, e.g., Art. V, Sets. 20, 21, 23 and 28 of the Constitution.
We think the clear Import of these constitutional provislone
Is that the appointment 18 to be made only until the general
eleotlon and that the euccessor electsd to the unexpireil tez%
Is eMitled to take offlce as eoon as his electlon 18 complrted.
Thle i@ %n keeping with a policy to roturn elective office8 to
perrgie ohoe4n by,the people a8 Boon aa practicable. By de-
ferrlng the date tin whiuh the elected 8u~c4880~ could take of-
fib& to e&e later date, the Lsglelature would b0 attempting
to deprive the elected eucoeeoor of a portion of his term in
vlb;trtlon of the Conrtltution. Cate v. Rose, 63 Ky. (2 Dav.)
243 (1865). Where a 8tatut4 Ia eueooptSITof two different
ooaetmotlone, one of uh%eh would eultaln It8 vrllditf and
the oflur of uhleh Gould render It unconetltutlonal, that
;x$a.t&y~oa whloh uould.uphold Lt.8 vblldlty should be adopt.&
. ., StatMOe, I 111 and oaeee olted thereunder.
The forego1 oonolu8ion is not in ctinfliot wit&
Andereon v. Pareley, 37?.Y.26 39 (Tbx.Clv.Anp. 1931, error
.
Hon. John R. Coifee, page 5 (WW-516)
ref.), In which the constltutlonallty of irtlcle 17 was su6-
talned. That case Involved the date on which a full term In
the otfloe of County Commissioner began, and there Is nothing
In the opinion to Indicate that the’ court was passing on the
appllcabllity or validity of the statute with respect to un-
expired terms.
Having concluded that Article 17 doee not apply
to unexpired.tems, we come next to the question of the time
when a person elected to an unexpired term slay take Office.
We are of the opinion that the provisions 3n the Constitution
and Article 2355, R.C.S., llmltlng appointments until the next
general election by necessary implication give the person elected
to fill the remainder of the unexpired term the right to take
office aa soon ae he Is elected. However, a peraonls election
Is not ~corpleted until the returns of the election have been
official1 canvassed. Ex parte Sanders, 147 Tex. 248, 215 S.W.2d
325 (19487. In that case th S Court construed Article
29298-1, V.&S. (now Art& l%yernonIs Election Code) as
flxlng the date for the commencementof the regular terns In
certain state and dletrlat offices without passing on Its ap-
pllaabllltg or aonetltutlonallty with respect to unexpired
tern8 or dealdlng when a person elected .to an unexpired term
would be entitled to take ofilce. We are of the opinion that
this rtatute wee Intended to flx the commencementof regular
temo only and that It would be unoonstltutlonal under Article
Iv, Soatlon 12 of the Constitution ii it did apply to unex-
pired tena. While Rx parte Sanders does not rule on that @es-
tlon, ,thr holding that an election 1s not oomplete until the
retiarns are aanvassed would apply to all elections, whether
Sor a full tern or for an unexpired term.
.
SUNNARY
A person elected to fill an unexpired tern In
‘.. the o?flce of County Attorney IS entitled to receive
a certlflaate of electloti and to qualify and take
Off100 Immediately aiter the returns o? the general
election at which he was elected have been aanvasaed.
Your8 very truly,
WILL WILSON
Attorney General of Texas
.
Hon. John R. Cotfee, page 6’(ww;516)
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APPR(WED: ..
0~0. P’. Eitiaiciurn, dh&an
J. C. Davla, Jr. . . .
L. P..Lollar
C. K. Rlcharde
w;v.tippert
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