Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 26,2004
The Honorable Eugene D. Taylor Opinion No. GA-0263
Williamson County Attorney
Williamson County Courthouse Annex Re: Time of taking offtce of a person elected to the
Second Floor office of sheriff as a successor to an individual who
405 Martin Luther King, Box 7 was appointed to till a vacancy in that office
Georgetown, Texas 78626 (RQ-0257-GA)
Dear Mr. Taylor:
You ask about the time of taking office of an individual elected to the office of sheriff as a
successor to a person appointed to fill a vacancy in that office.’
You state that the “elected Williamson County sheriff resigned” in January2004 and that his
position was subsequently filled “by appointment of [the] Commissioners Court.” Request Letter,
supvn note 1, at 1. The appointee is not a candidate at the November 2004 general election; rather,
another person is running unopposed for the position of sheriff for the four-year term beginning on
January 1, 2005. See id. You ask whether the individual elected on November 2 assumes office
immediately upon his certification as the winner ofthe election, or whether the incumbent appointed
sheriff continues in office through December 3 1,2004. Id.
The answer to your inquiry is well established in Texas law and jurisprudence. Article V,
section 23 of the Texas Constitution provides that “[tlhere shall be elected by the qualified voters
of each county a Sheriff, who shall hold his office for the term of four years, whose duties,
qualifications, perquisites, and fees of office, shall be prescribed by the Legislature, and vacancies
in whose oftice shall be filled by the Commissioners Court until the next general election.” TEX.
CONST. art. V, 4 23. Section 601.003(a) of the Government Code declares that “[tlhe regular term
of an elective state, district, county, or precinct office begins on January 1 ofthe year following the
general election for state and county officers.” TEX. GOV’TCODEANN. $601.003(a) (Vernon 1994).
Likewise, section 601.003(b) states that “[a] person elected to a regular term of office shall qualify
and assume the duties of the office on, or as soon as possible after, January 1 of the year following
the person’s election.” Id. 5 601.003(b). Thus, under the plain language of the Texas Constitution
‘Letter from Honorable Eugene D. Taylor, Williamson County Attorney, to Honorable Greg Abbott, Texas
Attorney General (Aug. 5, 2004) (on tile with Opinion Committee, &o availableaf http://www.oag.state.tx.us)
[hereinafterRequest Letter].
The Honorable Eugene D. Taylor - Page 2 (GA-0263)
and statutes, an individual elected at a general election held in an even-numbered year does not
assume office until January 1 of the following year.
In Exparte Sanders, 215 S.W.2d 325 (Tex. 1948), the Texas Supreme Court adjudicated a
dispute similar to the situation here, between a newly elected district judge and the person appointed
to till a vacancy in that office. The individual elected at the November 2, 1948 general election (the
“relator”) went to the courtroom on November 9, 1948, disrupted the proceedings, and asserted his
right to assume the office of district judge. Id. at 326. The incumbent appointed judge demanded
that the relator “vacate the bench,” but he refused to do so. Id. The incumbent judge then held the
usurper’s act to be contempt of court and ordered him confined to jail for three days. The relator
subsequently tiled, in the Supreme Court of Texas, an original habeas corpus petition against the
sheriff. Id. at 325-26.
The court held that the relator “had neither legal right nor color of legal right to the judgeship
on November 9.” Id. at 326. “[Tlhe term ofoflice he was seeking did not and could not begin until
January 1,1949. That is what he asked for and that is what he got Any other conclusion would
make the beginning of a term of office depend on the will of the electee rather than the will of the
electors as the latter has been unequivocally expressed .” Id.
After holding that the relator’s term could not commence until January 1, 1949, the court
addressed his claim that the appointed judge’s term expired on November 2, 1948, the date of the
general election. Confusion apparently had arisen because article V, section 28 of the Texas
Constitution provided that vacancies in the office of district judge “shall be tilled by the Governor
until the next succeeding general election.” Id. The court then declared:
If that language had to be given the cold-letter interpretation that
relator urges, the 37th District Court would be at a standstill from
November 2,1948, to January 1,1949, for want of a judge to man it.
That the Constitution of this state does not intend any such result
becomes quite manifest by reference to Art. XVI, Sec. 17 . which
directs that “All officers within this State shall continue to perform
the duties of their offices until their successors shall be duly
qualified.” Under Art. V, Sec. 28, supra, [the incumbent judge]
became an “officer within this state” by appointment ofthe Governor
upon the death of Judge Terrell, therefore under Art. XVI, Sec. 17, he
continues in office until his successor “shall be duly qualified”; and
relator cannot qualify before January 1, 1949, because he has no
mandate by election or otherwise to do so.
Id. The court concluded that “[olnly by construing these two sections of our Constitution together
can the orderly process of government be preserved. So that is the construction we give them.” Id.
In the situation you pose, subchapter D, section 87 of the Local Government Code uses
language analogous to that of article V, section 28 of the Texas Constitution. Section 87.041(a)
provides that a commissioners court may till a vacancy in the office of sheriff. Subsection (c)
The Honorable Eugene D. Taylor - Page 3 (GA-0263)
declares that “[tlhe person appointed by the commissioners court to fill the vacancy shall hold office
until the next general election.” TEX. Lot. GOV’T CODE ANN. 5 87.041(c) (Vernon 1999). This
statute must, like the constitutional provision at issue in Sanders, be read in conjunction with article
XVI, section 17 of the Texas Constitution in order to preserve “the orderly process of government.”
A number of attorney general opinions subsequent to Sanders have recognized this principle.
In Attorney General Opinion M-742, this office said that a person appointed to fill the office of
justice ofthe peace continues to hold his office between the date of the general election and January
1 of the following year. See Tex. Att’y Gen. Op. No. M-742 (1970) at 7. Likewise, in Attorney
General Opinion MW-521, the attorney general concluded that an appointee to the office of district
judge held office “until his successor ‘has been duly elected and qualified which will be on the
first dayofJanuary following [his] election, or as soon thereafter as possible.“’ Tex. Att’y Gen. Op.
No. MW-521 (1982) at 3; see also Tex. Att’y Gen. Op. No. JM-579 (1986) at 3 (person elected to
term as justice of the peace shall qualify and assume duties of office on the January 1 following his
election or as soon thereafter as possible).
We conclude therefore that the person who is elected sheriff of Williamson County at the
November 2,2004 general election is entitled to assume office on January 1,2005. The incumbent
sheriff, previously appointed by the Commissioners Court, is entitled to remain in office until that
date.
The Honorable Eugene D. Taylor - Page 4 (GA-0263)
SUMMARY
The person elected sheriff of Williamson County at the
November 2, 2004 general election is entitled to assume office on
January 1, 2005. The incumbent sheriff who was previously
appointed by the Commissioners Court is entitled to remain in office
until that date.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee