Untitled Texas Attorney General Opinion ( 1958 )

OF TEXAS
AUSTIN ii.TRXAS
WILL WILSON oo-"
ATT‘,Rnrery CRGNERA..
t&
MeY 1, 1958
.eA?L -
Hon. Raymond J. Goodman Opinion No. WW-42
e?
County Attorney
Webb County Re: Tenure of appointment to fill
Laredo, Texas vacancy in office of Sheriff,
and related questions.
Dear Mr. Goodmsn:
Your request for an opinion Is based on the following
fact8 es set out In gcur letter:
"At the general election in 1956 the Honorable I.
J.C. Martin, Sr. was re-elected to the offlce of
Sher!.ffof Webb County for the term of 4 years ex-
piring on'December 31, 1960; snd on January 1, 1957,
'duly qualified and assumed such office and continued
to serve in &aid capacity until his death on December
19, 1957 *
"The Commlsslonere Court of Webb County, at lta
term In Januray, 1958, duly appointed Mr. P.L. Florea;
a resident citizen and qualified voter of Webb County, as
Sheriff to fill the existing vacancy in said term of office
by reason of the death of the late incumbentSheriff
J.C. Martin, Sr. Whereupon',Mz; Flores lmmedlstely
qualified for and assumed said office."
Under these factual cSrcumstance8, you ask the follow-
ing question, which we have restated slightly for the sake of
brevity:
(1) Will the person appointed to fllL the
vacancy in the term of.office of,Sherlff be.entltled
to hold ttieoffi.cefor the entire unexpired period
of the 4-year term and unti.la successor is duly
qualified, or ,pnly until the next general election
held next folldwing
. the date of such appointment?
(21 If the Commissioners Carrt 18 authorized
to fill e vacaiicyin the office of Sheriff only:until
the next..'eneralelection, how shell the designation
of the ti& 16.of the office for the unexpired term be
printed on the offlclal'ballots for the primary
election and f& the general election?' Should the
ballots show t@t the election ls.fotian unexpired
. .
Hon. Raymond J. Goodman, page 2 WW-426
"For Sheriff (unexpired term endi
``?'3~;gi~O)" or “For Sheriff (unexpired term
7 "3
(3) If a qualified person la elected at 8UCh
"next general election" for the remaining unexpired
term of office of Sheriff, may such person 80
elected qualify for and assume SUCh office lnnxedlately
after issuance of his oertlficate of election for
said remalnlng unexpired term? If the answer to this
qu%$tlon 1.8negative, when may such person qualify for
and assume the office?
In answer to your first question it la our opinion
that the appointment made l.nJanuary, 1958, to fl.11the vacancy
jn the office of Sheriff of Webb County will continue only until
the general election of 1958, aa hereinafter explained. Article
V, Section 23 of the Constitution, a8 amended in 1954, provide8
that vacanc!.es!.nthe office of Sheriff shell be fflled by the
Commi88lon%r8 Court "until the next general election." There
is no material difference between this provi.slonend the statu-,
tory provision i,nvolvedln Sterrett v. Moruan, 294 S.W. 2d.201
(Tex. Clv. App. 1956), under which the court held that theap-
polntment continued untl.1 the next general election occurrl~ng
after the vacancy. In that case the contention wae made that an
appoLntment by the Commlsaioner8 Court of Dallas~County to fill
a vacancy in the office of Judge of County Court of Dallas
County et Law No. 2, made in September, 1956, would continue for
the entire erlod of the unexpl.redterm extending through Decem-
ber 31, 195 8 and that an election should not be held at the
general %lecCl,onin 1956'to f1.11the remainder,of'.theunexpired
term. The court held that vacancLe8 in that office mat be
filled aa provided In Article 1970-24, Vernon's Clvfl Statutes,
whl~chprovided that any vcscancyin that office "shall be ff.lled
by the Commlssloners Court of Dallas Caanty until the next r%gu-
lar election" meant the "next general el.ectlon,"which In that
case WRS the general election to be held on November 6, 1956.
It should be noted that appoi.ntmentsfor the conatitu-
t_j~.onal offl. of County Judge and for the offl,ceof Juxcoof
the Peace ar% controlled by Article V, Sectjon 25 of the ConSti-
tutjon, which prOvj.d%Sthet vecanciee in these offices ShRll be
filled by appointment by the Commlsalonere Court 'until the
next general %leCtiOn for such offices." As pointed out in
291 S.W.2d 249 (TRx. CLv.'App. lg56), this
era meterlally from the vacancy provisions appll-
cable'to other offices, which do not contain the qualifying
phrase "for euch officea." Rawll,nav. Drake held that appolnt-
m%nts for th%S% two offices COnthU% untjl the next general
election for such offlcek whl,chwould be the generai election
occurring four yeara aft& the electionat which the term in
which the vacancy occurred had been originally filled; but a8
Hon. Raymond J. Gocdman, page 3 WW-426
to other offices, when vacancies occur the offices are filled by
appointment until the next succeeding general election.
be noted, further, that e constitutional emendment will b?v?Ed"'
on at the general election in 1958 to change Section 28 of
Article V 80 ab to provide that va&anci%e 1.nthe office of County
Judge and JU8tiCee of the P%ece ahall be filled by the Commia-
elonere Court 'until the next succeeding General Election."
H.J.R. 30, Acts of the 55th Leg., R.9. 1957, p. 1640.
In your second question you ask whether the official
ballot should show that the election is for the unexpired term.
Article 13.X of the Election Code requres that the eppllcetion
of a cahdidete for 0 place on the prlmery,ballot show whether it
is for a full term or an tinexpitied
terti,but the statutas tire*
ticrlbingthe form of the offLcle1 ballot (Artlolee 6.01, 6.05,
and 13..Ogof the'Elbctlon Code) are silent on the"queetlon of
whether this information should be shown on the ballots.
We are of the opinion that the iailure of the ballot8
either at the prlmery election or at the general election her%
under conaldetiatldnto show that it ie for the unexpired term
would not lnvelid8te the election, but we think ~lt 1s ~entlrelg~-
proper for the ballots in both elections to ehow that the eled&n
ie for the unexpired $&rm. Either derlgnetlon suggest&d lh yarr
letter would be eatle eotorJr'.'
'In meklng up the bellote'for the
general election, the Secreter of State usually designates the
unexpired teti by the words ITunexf)lred,term)"' or "(for the un-
expired term)" following the title OS the office. ,,,,
Conceivably eiielectton might be deolared lnvelid if'
there were C8Iidid8t%8at the aaineele@on both fcir an unexpired
term end for's aucc6eding full term in en offlc%.and the ballots
were so prepared that the voters Could iiottell for which teriK
the c8ndid8t08 were running. This situation cannot occur in the
1958 elections to fill the unexpired t&m Ln the office of Sher-
iff, and we are expreaeing'no opinion on what designtitlonwould
be required in such e situation. It would occur only where some-
one aought election to the brief portion of an unexplr%d term
between the general electloh and,the commencement of the new
t%rm filled at the eeme eleatlon, end frbm past experience it
ear% unlikely that the eltuetloriWill arise very often if at
znn .
In your third question you ask when the person elected
&t the next general election mey quellfg for and amume the of-
fide. Under Article XVI, Section 17 of the Constitution, the
b;ppointedfncumbent will be entitled and in fact will be under
k-duty, to continue to ptirformthe duties of'the orflce until
hi8 ,suci?bsbor lb dulg qiaallfled. The ilection of a succeadbi--.
to the appointed Sh~rlii will not be completed until the result8
Hon. Raymond J. Goodmn, p8ge 4 WW-426
of the eleotion have been officially c8nveesed by the Commi8-
8lonere Court under Article 8.34 of the Election Code, end the
eucceeeor cennot claim the oifice befbre that time. u mrta
147 Tex. 248,~215 S.W. 26 325 (1948). Howevg we are
sei? opinion that the parson elected will be entltled'to a ca-
tlflcete of election es soon as the results ere officially can-
vassed, end that he may qualify and eeeume.the office immediately
thereafter. So fer l 8 w% have been able to find, this precise
point ha8 not been ruled on by the Texas courts but this seems to
u8 to be the clear meaning of.the constitutional provl8lon8 and la
the conclusion indicated in 3x Dart0 Sanders, supra. In that ca8e,
the person elected et the general election was not entitled to
esaume office before the fir& day of January following the elec-
tion, the date of the commencement of the new term, because he had
been elected to the new term.end not to the unexpired term. The
opinion implies that a person elected to en unexpired term would
be entitled to receive a certificate of election and to es8ume
the office es soon es the election had been completed. The hold-
ings in Attorney General'8 Opinion8 0-1664, 0-6206, v-685, end any
other prior opltiiona Implying that e person elected to ah unex-
pired term is not entitled to assume offtce until January 1 fol-
lowing his election ere hereby overrul&dd
An appointment by the Commissioners Court to
fill a vacancy in the office of Sheriff continues
only until the next general election following the
occurrence of the vacancy. Tex. Conat., Art. V,
Sec. 23. Where a vacancy occurred Ln December, 1957,
an election should be held at the gene=1 election
in 1958 for the remainder of the unexprled term ending
on December 31, 1960, end candidates for nomination
to the office may run in the primary election.
In both a primary election end a general elec-
tion for an uaexplred term of office, it la proper
for the ballots to show that the election 18 for the
unexpired term.
A peraon'elected to en unexpired term in the
office of Sheriff is entitled to receive e certifl-
cete of election end to eaaume the office as soon as
the results of the election he,vebeen officially can-
vassed by the Comkle'sloneraCourt under Article 8.34
of the Election Code. The incumbent contlrplestomper-
form the duties of the ofilceuntil his successor is
duly qualified.
.: -
Eon. Raymond J. Goodman, page fj W-426
Yours very tru1g
wIz& wrLBoN
Attorney General of Texas
By s/Mary K. Wall
Mary Ki Wall
AasLstant
MKl?:nh:wc
APPROVED:
OPINION CObWITTEE
Gee. P. Blackburn, Cheirman
J. C. Davis, Jr.
C. K. Richards
L. P. Lollar
RlWIBWEDFORTHBATTCRNRYGENXiRAL
By: W. V. Geppert