Untitled Texas Attorney General Opinion ( 1958 )

THE A~TORNEYGENERAX
OF TEXAS
WILL WILSON
A-KSNEY GENERAI. September 88, 1958
Honorable Noah Kennedy, Jr.
County Attorney
Nueaem County
Corpus Chrllstl, Texas
Opinion No. WW-367
Re: If a vaaanoy oaauru in the
offioe of' County Attorney
prior to the general elea-
tion in a year when the
offiae of County Attorney
Is not up for ale&ion, ‘aan
the vaaanay be filled at
the next general election
Dear Mr. Kennedy 8 and related questions.
We have reaeivea your letter of August 26th in
which you, ask the following questionsr
“(1)
If a oraanoy oaoum In the offiae of
County prior to tie general eleatlon
Attorney in
a year when the office of County Attorney is not
up for rleotlon, aan the vaoaney be filled at
said general cleation?
“(2) Aasumlng that the armwer to question
number (1) is ‘yes*, wheat are the possible ways
for a candid&e to get hias name on the ballot for
the office of County Attorney fn the general elec-
tion?
“(3) If It is possible for a oandldate to
~’get his name on the ballot au an independent, when
must hie appllaation be filed and does the.general
law pertaining to lnaepenaents apply to the prere-
quisites for getting his name on the ballot? .
“(4) If the County Attorney tenders his
resignation beforq the general election ‘to take
&ff&at boa 'Jamua~.'1,-195~1~9~'aohs~'thib &+&te-& ".'
vaaanay on the date of tender suah as would permit
such vacancy to be filled at the next generol
election?
Honorable Noah Kennedy, Jr., Page 2 (``-367).
“(5) If you have answered question Number
(3) to the effect that the general law relating
to Independents does apply and that his prere-
qulsltes for getting his name on the ballot are
the ssme as those presarlbed In said general
law, then must each of the persons who signed
his petition have refrained from voting In both
the last prior primary and the last prlor run-
off primary election ~of either politlaal party?"
Seation 21 of Artiale V of the Constitution of
Texas provides In part as follows:
II In case of vacancy the Commissioners
Court of ch& dounty shall have the power to appoint
a Coun;4y Attorney until the next general election.
. * . (hphasls added).
Artlale 2355 of Vernon's Civil Statutes provides:
"The oourt shall have power to fill vanamoiee
in the office of: a. . a County“'Attorney, . , .
Such vaaancies shall be filled by a majority vote
of the members of said Court, present and voting,
and the person chosen shall hold office until the
next general eleotlon." (Kmphasls added).
In our opinion, when a vaoanoy ooours in the office
of County Attorney, such ,vaaanay Is to be fllled Initially by
an appointment by the Commissioners I Court, ana a ~uoaessor
Is to be eleated at the nextgeneral eleotion following the
occurrence of the vacancy. Sterrett v. Morgan, 294 S.W.2a
201 Tex. Clv. App., 1956); Attorney General's Opinion WW-426
(195 B); Attorney ffeneral's Opinion S-215 (1956). This general
rule Is probably subjeetto the qualification that in order
for a valid election to be held for the unexpired term, the
existence of the vacancy must become known in sufficient time
prior to the date of the eleotfon to put the public on notice
that the vacancy is to be fflled at that election. See Cun-
ninghsm v, Queen, 96 S,W.2d 798, 800, Headnote 2 (Tex, Civ.
App., 1936 error dism.). Without passing on the question of':'
whether a GalId election could be held where the vacancy
occurs too late for candfdates to have their names placea on
the ballot, we think ft is clear that a valfa election can be
held if the vacancy occura within the statutory time for noml-
nation of independent candidates even though there fs no
statutory method provided for the making of party nominations.
Qllmore v. Waples, 188 S,W, 1037 (Tex. Sup,, 1916); Sterrett
v. 0 rgan, supra; Attorney Generalga Opinion s-215. As thus
. -
Honorable Noah Kennedy, Jr., Page 3 (w-367).
qualified, your first question is answered "yea."
,I-
,' In your ae00na question you ask what are the poasl-
ble ways for a person to get his name on the ballot as a
aandldate for an unexpired term In the offlae of County Attor-
ney. Article 6.01 of the &leatlon Code provides that do nanib
shall appear on the official ballot except that of a candidate
who was aatually nominate8 either as a party nominee or a8 a
non-partisan or Independent aanaiaate. If the vaaancy oaaurs
In sufficient time for party nominations to be made In the
primPry eleatlons, both party ana Independent nominations for
an unexpired term are subject to the same regulations aa noml-
nations for a full term. If a vacanoy oaauw in a state or
distrlat offioe too late for a nomination to be made In the
primary election, the proper exeoutlve oommlttee of a polltioal
arty may rmmlnate a party aanaiaate'aa provided In Artlola
i .04 of the Eleation Oode, but the county executive aommlttee
of a polltloal party eannot make an original nomination for a
county offiae in olraumstanaes of this nature. Qllmore v.
Attorney Qeneral’s Opinion S-215. I Gil more
is stated that a political party may ielect
not contrary to law and agreeable with
party usage where no statuCory provision is made for nomlna-
tlon. From later aane8 It appears that the county aonventlon
aould select a nominee for a aounty office, or the nomination
could be made in the state convention in the event the aounty
aonventlon did not make a nomination, Brewster 0. Haesez, 232
S.w.2d 678 (Tex. DIV. App. 1950); Wlll’iams v. Runtress, 272
S.W.2d 87 (Tex. Sup., 1954 * There has been no deolslon on
whether my other method of~noti~atlon for a aounby offloe
would be open to a polltioal party where the vacanoy oaours
too late for a nomfnatlora to be made lm the Fegular county and
state conventions, but as UlplRetfaal matter it appears that
there Is no feasible way for a polftiaal party to make a noml-
nation after Its aonventfons have been held. In aa8e of
vaaanoiea In aounty offlcse6 ocaurlng too la%e for pa&y noml-
nations to be made, *he only way for~a candidate to have his
name ~plaoed on the ballot I.8 as aw independent eurdldate.
Candidates maa also rum aa write-in aanaidate8 without having
their names printed on the ballot. Sterrett v. Horgan, supra.
In anawer to your third questlow, in the event a
prospeatlve candidate deafFern to run for the Paexpired term
of the offloe of County Attorney aa an Independent, hlr aan-
diaaay ,would be subject to *he provlrlotir of &tloler 13.50 -
13.53, Texas ElectIon Code, excrepti as n&ed~Bolow, In our
opinion. the deadlins for Piling the applfaation md cronsent
to beaome a aanalaate (whfoh would be September 22, 1958, for
the 1958 general election), fr not oontrolllng where the vaaanay
Honorable Noah Kennedy, Jr., Page 4 (WW-367).
occurs too late to afford candidates a reasonable time to
aomplcte and file their appllcatlons before the ,deadllne.
In Sterrett v. Hyer, Cause No. 16,058 in the Dallas Court of
Civil Ap eals, decfded on October 5, 1956 (opinion not
reported P , the Court had under conelderatlon the question of
whether the deadline for filing was controlling 3.n the
following situation. A vacancy had occurred in the office
of Judge of a County Court at Law on September 1, 1956, but
It was not finally determined that a vacancy In that office
was subject to belng,fllled at the 19% general election
until the Court of Civil Appeals rendered its deaision in
Sterrett v. Morgan, 294 ‘S.Y.2d 201, on September 28, 1956.
t that, decision, and’subeequent to the statutory deadline,
theeEerson who had been appointed to, fill the vacancy filed
his application au an independent candidate. The Court held
that under the circumstance~s of the case the candidate had
not had a reasonable oppotiunlty to comply\with the letter of
the law in the matter of the filing of his kpplication aa an
independent candidate and that the applicatipn should be
received and acted upon by the County Judge i>n the same manner
as though it had been filed within thirty days after the
second primary eleotion. By similar reasoning, we think can-
didates are entitled to a reasonable time within which to file
their applications after the vacancy occurs, but in any event
the application must be filed In sufficient time to permit the
election officers to have the ballots prepared in accordance
with statutory requirements, What constitutes a reasonable
time for candidates to file for the office of County Attorney
of Nueces County will be a matter for the initial determination
of the County Judge, the officer with whom the applications are
to be filed.
The answer to Question No. .(:k) .deptinda upon when a
vacancy occurs. We have found no statute regulating the resig-
nation of a County Attorney to take effect at a future date.
Article 4.09 of the Election Code relates to vacancies to be
filled by a special eILectlon only, and since vacancies In the
qffice of County Attorney are to be filled by appointment
until the next general election, such statute Is not appll-
cable. However, It may;be noted that the provision in Article
4.09 permlttlng the holding,of, a special election prior to the
effective date of a resignation to become effective at a
future date was added because~,the Legislature was of the opin-
ion that express etatut.ory``a~thorfty was necessary to enable
the holding of an election for.an unexpired term prior to the
~date on whlah the reafsnation became. effective. See Attorney
General~s Opinion O-g093 (1943) for a dfroussion of.the back-
ground of this amendment, popularly called the “cfirner Amend-
. .., i;,:::.. ,,
Honorable Noah Kennedy, Jr., Page 5 (``-367).
\
merit." It seems to us that if the Incumbent County Attorney
resigns before the general election of 1958, with such reslg-
nation to be effective after the general election of 1958,
no vacancy would occur so as to allow.hls successor to be
elected at the general election of 1958.
Since no nomination for the office of County Attor-
ney of Nueces County was mad& at either of the primary elec-
tions in 1958, we are of the opinion that signers of the
Independent's application to have his name placed on the
ballot need not have refrained from voting In either of the
two primary elections.
SUMMARY
Vacancies In the office of County
Attorney are to be filled by the
Commissionersf Court, such appointee
to serve until his successor is elec-
ted at the next general election.
If the vacanay occurs too late for
party nominations to be made, the only
way candidates may run In the general
election Is as Independent candidates
or write-ln,candfdates.
Articles 13.50 - 13.53, Eleation Code,
govern the candidacy of independent
candidates for an unexpired term In
the offlce.of County.Attorney, except
that the statutory deadline for filing
the application and consent to candl-
dacy is not controlling where the vacan-
cy occurs too late to afford the candl-
dates a reasonable time to complete snd
file their appllcatfons before the dead-
line.
If a resignation is submitted before
the general election, with such reslgna-
tion to be effective after the general
election, no vacancy would occur so as
to allow a successor to be elected at
the general election between the date
on which the resignation was submitted
Honorable Noah Kennedy, Jr., Page 6 (``-367).
and the date on which It was to
become effective.
When there has been no nomination
made In the'prtiary election,
signers of an Independent's appllca-
tlon to have his name on the ballot
need not have refrained from voting
In the primary.
Yours very truly,
WILL WILSON
Attorney General of Texas
Tom I; MaFarllng /
Assistant
TIM:jl
APPROVED:
OPINIONCOMMITPEG
(tea. P. Blackburn; Chairman
W. E. Allen
Jack Goodman
Leonard Passmore
REVISWEDFOR THJ3ATTORNEY QENERAL
BY:
W. V. Geppert
. .
.