Untitled Texas Attorney General Opinion ( 1986 )

Honorable Mike Driscoll Opinion No. m-589
Harris County Attorney
1001 Preston, Suite 634 Re: Time of assumption of office
Houston, Texas 77002 of individual who is elected to
fill unexpired term as constable
Dear Mr. Driscoll:
You have provided us with the following information. A particular
justice of the peace in Harris County was elected to a four-year term
in 1982. He yas not renom:inatedby the voters in his party's primary
held in May of 1986. In July of 1986, the constable of that precinct
died, and his widqw was appointed to fill the vacancy in office
created by her husband's d,zathuntil a successor could be elected at
the next general electior. and assume office. The aforementioned
justice of the peace wab hi:; party's nominee in the general election
in November to fill the dlxeased constable's unexpired term; he won
the general election. On Ilovember6, the Harris County commissioners
canvassed the general election votes pursuant to section 67.016 of the
Election Code and notified the justice of the peace by certificate of
election of his victory ir. the constable's race. You indicate that
the justice would like to complete his term of office as justice of
the peace and take office as constable on January 1, 1987.
Accordingly, you ask whether the justice of the peace must file his
bond, take his oath, and jmmediately assume office or may wait until
January 1 to assume his ne\rduties. We conclude that he must qualify
for office immediately.
Article 17, V.T.C.S..,provides for the comencement of terms of
office and sets forth the following:
The regular t,erms of office for all elective
state, district, county, and precinct offices of
the State of lexas. excepting the offices of
Governor, Lieutenant Governor, State Senator, and
State Representat.ive,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 assune the duties of their respective
offices on the fJ.rstday of January following their
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Honorable Mike Driscoll - Page 2 (JM-589)
election, or a8 soon thereafter as possible.
Persons elected '51 unexpired terms in the various
state, district, county and precinct offices shall
be entitled to $alify and assume the duties of
their respective oEfices immediately upon receiving
a certificate of ;lection, which certificate shall
be issued imsm~iately following the official
canvass of the %ults of the election at which
they were electegG and they shall take office as
soon thereafter 8% possible. (Emphasis added).
It is clear from even a cursory reading of article 17 that the
newly-elected constable shmld qualify (by filing his bond and taking
his oath) as quickly as pcssible. As this office noted in Attorney
General Opinion MW-521 (1982),
[alrticle 17 clearly provides that only those
persons elected to unexpired terms qualify for and
assume the dutic!s of their offices immediately
upon receiving a certificate of election. Those
elected to regula:! terms qualify for office 'on
the first day of January following their election,
or as soon thereafter as possible.'
See, e.g., Ex parte Sanders, 215 S.W.Zd 325 (Tex. 1948); Attorney
General Opinions M-742, M-z>7 (1970); O-4994 (1942). We note that
article XVI, section 17, OE the Texas Constitution requires that the
person presently serving as constable shall remain in office and
perform the duties of office until a successor is duly qualified. We
further note that an officer, in this instance a justice of the peace,
may divest himself of an o:Ificebefore his successor has qualified by
himself qualifying for and entering upon the duties of another office
which he cannot lawfully ho:Ld at the same time. Pruitt v. Glen Rose
Independent School District No. 1, 84 S.W.Zd 1004 (Tex. 1935); State
ex rel. Peden v. Valentine, 198 S.W. 1006 (Tex. Civ. App. 1917, writ
ref'd); Attorney General Opinion M-627 (1970).
Accordingly, we conclude that a justice of the peace who has been
elected to serve out the unexpired term of a constable should qualify
for and assume office immediately.
SUMMARY
A person who is elected to serve out the
unexpired term o:i a constable should qualify for
and assume office immediately.
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Honorable Mike Driscoll - Page 3 (JM-589)
JIM MATTOX
Attorney General of Texas
JACK BIGHTOWJB
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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