Untitled Texas Attorney General Opinion ( 1959 )

TEEATTORNEYGENERAL
OF TEXAS
FVILI. WILSON
A’CFORNEY OENERAL
January 6, 199
o- 7~08
v-77/
Hon. Edd B. Keyes Opinion No. W-541
County Attorney
Tom Qreen County Re: Questions relating to
San Angelo, Texas the existence of a
vacancy in the office
of constable and the
valldfty of an election
to fill the’vacancy
under the conditions
Dear Mr. Keyes: stated.
You have requested an opinion on the existence of
a vacancy in the office of constable and the validity of an
election to fill the vacancy under the conditions set out in
your request, which are summarized as follows:
“A man was elected to the office of con-
stable in the general election of 1954. He did
not run for office nor was he elected at the
general election in 1956. He has continued to
ho,ld this office, receiving pay until the gen-
eral election on November 4, 1958, at which time
there was a write-in campaign in which he was
defeated. Not until then was It discovered that
the above situation existed.
"Article 18, Revised Civil Statutes, states
that an office holder holds over until a person
is elected or appointed and qualifies. Article
2355 states that the commissioners court shall
fill vacancies In the office of constable.snd
that the person chosen shall hold office dntll
the next general election. Article 6883 states
that whenever any person elected constable neg-
lects or refuses to give bond and take the of-
flclal oath within twenty days after notice of
his election, the office shall be deemed vacant.
“The thought here is that, first, there was
a vacancy on January 1, 1957, when the incumbent
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Hon. Edd B. Keyes, page 2 (WW-541)
failed to qualify, and a8 a result there was a
vacancy. Contrary to that thought is, the ln-
cumbent holds over until a person is elected or
appointed; as a result, no vacancy has existed
until it was known that the incumbent has failed
to meet the requirements. As a result, it devel-
ops< that It is necessary to decide whether a :
vacancy existed.’
Supplementing your opinion request, you have con-
f%rmed our inference that the office of constable was not listed
on the printed ballot at the 1958 general election, and the write-
In votes were cast by the voters having written In both the title
of the office and the name of the person for whom they wished to
vo,te.
“Under Article ‘m, Section 65’df the Constitution
and Article 17’of the Revised Civil Statutes, the person who
was elected to the office of constable in the general election
of 1954 received a term of two years only, which expired on De-
cember 31, 1956. The succeeding term was for four years, begin-
ning on January 1, 1957 and expiring on December 31, 1960, and
regularly would have been filled at the general election in 1956.
Since no one was elected in 1956 to fill this term, the office
became constructively vacant on January 1, 1957, and the vacancy
was subject to being filled by appointment of the commissioners
court until the general election In 1958, at which time an elec-
tion should have been held to fill the remainder of the term
which will expire on December.31, 1960. If the write-in votes
cast for this office at the 1958 general election constituted
a valid election, the person who received a plurality of the
votes is entitled to the office for the remainder of the unex-
pired term. On the other hand, If no one was validly elected
to the unexpired term at the 1958 general election, the office
continues to be constructively vacant and is subject to being
filled by appointment of the commissioners court until the gen-
eral election in 1960.
The Incumbent who was elected in 1954 was entitled
to hold over into the new term, In accordance with Article XVI,
Section 17 of the Constitution and Article 18 of the Revised
Civil Statutes, until a successor qualified. See cases cited in
34 Tex.Jur., Public Officers, 8 31. We do not believe the in-
cumbent’s failure to qualify for the new term is material. A
hold-over officer is not required to qualify for the new term
In order to continue to perform the duties of the office. State
v. Jordan, 228 S.W.28 921 (Te~.Clv.App. 1930, error dism;)-r'^‘lf-
he had attempted to qualify for the new term by taking a new
oath and giving a new bond, he would'not have acquired any fur-
ther right to the office than as a hold-over, since he had been
neither elected nor appointed to the new term. But the fact that
Hon. Edd B’, Keyes, page 3 (WW-541)
he was holdiruz over did not orevent there beinn a vacancv in
the.sense thai the office wai subject to being-filled by”ap-
pointment. State v. Cocke, 54 Tex. 482 (1881); Maddox v. York,
54 S.W. 24 (Tex.Civ.App. 1899, affirmed 93 Tex. 275 55 S W
;Tom v. Klepper, 172 S.W. 721 (Tex.Civ.App. 19i5, error
ealnnina with Januarv 1, 1957. uoon the failure to
elect som:one a; the 1956 general eiectibn, there was a con-
structive vacancy In the office which was subject to being
filled by appointment of the commissioners court until the
general election in 1958, even though Article V, Section 18
of the Constitution provides that a constable shall hold of-
fice “until a successor is elected and qualified.” State v.
Cocke, supra; Tom v. Klepper, supra. Regardless of whether an
appointment was made, the remaining portion of the unexpired
term was subject to being filled by election at the general
election in 1958.
We come then’to.the question of whether there. was
a valid election of a successor at the 1958 general election.
If there was a valid election, the elected successor is en-
titled to assume the office as soon as his election has been
officially declared. Att'y Gen. Op. ww-516 (1958). If there
was not a valid election, the hold-over incumbent continues
in office as a hold-over until a successor has qualified, but
the commissioners court may appoint someone to fill the vacancy
until the general election in 1960.
The validity of the election depends on whether
the voters aenerallv knew or should have known that an election
for the office wastakIng place. Cunningham v. Queen, 96 S.W.2d
798 (Tex.Clv.App. 1936). If the office had~.been included in
the order of the county judge calling the general election and
the title of the office had been printed on the ballot, a valid
election could have been held by means of write-in votes even
thouah no candidate had auallfled to have his name orinted on
the ballot and thouah only a small fraction of the voters wrote
in the name of a cand .ldate. Sterrett v. Morgan, 294 S.W.2d 201
1956); Cunningham v. Queen, supra; Att ‘y Cen. Op.
There is no Texas case deziding whether there can
be a-valid eleotion by means of writing in both the title of
the office and the name of the candidate where the office is
not listed on the ballot. In the Cunningham case, which In-
volved an attempt to nominate a candidate at the second primary
by this method, the court held that there was no valid elec-
tion under the fact6 in that case, but It did not go so far
as to hold that a valid election could not have been held under
any circumstances If the office was not listed on the ballot.
The case is also distinguishable from the present fact sltua-
tlon because write-in votes are not permitted at a second prl-
mary, and this was not a second primary but was a general elec-
tion.
Hon. Edd B. Keyes, page 4 (WW-541)
In other jurisdictions the cases ares in irrecon-
cilable conflict on the question of whether a valid election
can be held where the office is not listed on the ballot. For
our opinion we adopt the principles set out in the following
cases as representing what we consider to be the better views:
People v. President of Village of Wappinger's Falls, 144 N.Y.
6lb 39 E b4 (lt195)* Carlough v. Ackerman, 74 N.J.L. 16,
64 itl. f&4*(&6); Se&d v. Foutch, 44 Mich. 89, 6 N.W. 110
(1880); State,v. Turnbull 212 Mlnn. 382 3 N.W.2d 674 (1942);
dissentAngie v. Hayes, 146 Ohio St. 681, 76
N.E.2d 869 (1947).
On the basis of the foregoing authorities, we are
of the opinion that the ordering of an election for the office
and the listing of the title of the office on the ballot are
not absolutely essential to the validity of the election. The
failure of the election officers to do these things cannot de-
feat the right of the voters to fill the office by election,
and the voters have the right to write in both the title of
the office and-the name of the candidate of their choice. If
the voters generally had notice,through other sources that an
election for the office was taking place, the election would
be valid even though only a small portion of the persons voting
at the election availed'themselves of this right. On the other
hand, the mere fact that an office IS legally subject to being
filled at the election Is not conclusive that the voters knew
or should have known that an election for the, office was taking
place, especially where the office is not regularly filled at
that election.
Whether the voters generally knew or should have
known that an election for the office was taking place is a
fact question depending on all the surrounding circumstances.
The publioity given to write-in campaigns, the relative num-
ber of votes cast for the office, public comment concerning
the legal question of whether the office could be filled at
the election, are some of the factors which would have a
bearing on the question. The initial determination of this
fact question is to be made by the authority which canvasses
the election returns, subject to review by the courts. With
reference to the loffioe of constable here involved, the ini-
tial determination of this fact question Is to be made by
the Commissioners Court of Tom Green County. If it finds in
the affirmative on the question, it should canvass the votes
and declare the results and the County Judge should issue a
certificate of election to the person receiving a plurality
of the votes. If it finds in the negative, it should refuse
to canvass the votes.
Attorney General's Opinions O-203, 0-7508, V-771,
and any other former opinions of this office which may be
. I
Hon. Edd B. Keyes, page 5 (WW-541)
inconsistent with the principles announced herein are modi-
fied to conform to this opinion.
SUMMARY
Where no one was eleoted to the office of
o6nstable in the general eleotlon In 1956 for
the suoceedlng regular term and the Incumbent
continued in possession of the office. as a hold-
over offloer) there was a constructive vacancy .
In the office beginning with January 1, 1957,
and the remainder of the unexpired term was sub-
{;;; to being filled at the,general election In
.
Where the 1958 general eleotlon ballot did
not list the office of constable or; the printed
ballot; the validity of an eleotlon to fill the
unexpired term by means of write-in votes de-
pended ‘on whether’the voters generally knew or
should have known that an eleotlon for the office
was taking place. This 1s.a fact question, de-
pending on all the surrounding circumstances, to
be determined Initially by the commissioners courC
in deciding whether the votes for the office should
be canvassed.
Yours very truly,
WILL WILSON
Attorney General of Texas
MKW:bh Assistant
APPROVED: ;
OPINION COMHITTEB
Geo. P. Blaokburn, Chairman
Marvin H. Brown; JF’.
Byron Fullerton
Morgan Nesbitt
REVIEWED
FOR TRB ATTOw(gy GTRAL
BY: ;,’ .,
W.V. Geppert
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