GERALD C. MANN ‘?)LCJMTlX 11.

Honorable Robert F. Peden, Jr. CountyAttorney Matagorda County Bay City, Texas

Dear Sir: Opinion No. O-3047 Re: Power of Commissioners Court to declare vacancy in office of Justice of the Peace.

You have requested the opinion of thisDepartment upon the questionwhether the Commissioners'Court of Matagorda County can declare a vacancy to exist in the office of Justice of Peace of PrecinctNo. 5 of that county and appoint a successor,under the following state of facts:

"TheJustice of the Peace, PrecinctNo. 

### 5, Matagorda County became sick about the middle of lastyear. The CommissionersCourt appointed a man to fill the vacancy. The man who was sick
was returned to officeby the voters in theNovember election,but has never qualified. The man appointed by the court last year is still carrging out the duties of the office. The man who is sick expects some day to be able to hold the office. The court wishes to know if it can now declare a vacancy of the office and appoint his successor."

The rule with respect to the authority of the Commissioners' Court in suchmatters fs correctly stated In the
case of Ehlinger v. Rankin (C.C.A.)29 S.W. 241, as follows:

"TheCommissionersCourts have not the authority to judiciallydetermine a right of one to an office, or to remove a legally qualified officer from his office, for the jurisdictionin thismatter lieswithin the exclusive cognizance of theDLstrlct Court;but if, as a fact, a vacancydoes exist, then itbecomes the duty of the Commissioners'Court to fill it."

The question then, arising from your Inquiry, is this: Under the facts outlinedby you, has the person electedHonorable Robert F. Peden, Jr., page 2 

### O-3047

to the office oflJustice of the Peace of Precinct Matagorda County as a matter of law forfeitedhis the office to which hewas elected, so that, as a No. 

### 5 of right to matter of law, a vacancy therein existswhich the Commissioners'Court may recognize and fillby appointment.

. Revised Civil Statutes, 1925,Article 17, provides:

"Aftereach general election thosewho are elected to the various county and precinct offices shall qualify by taking the official oath and entering upon and assuming the duties of theirrespective offices on the first day of January following the last general election, or as soon thereafter as possible.

. . . ."

"Statutes fixing the time for qualifying are generallyregarded as directory only; and as a rule a failure to qualifywithin the time prescribeddoes not create a vacancy in the office unless the statute so prescribes. But the Supreme Court has said that this rule was made to cover cases where the officer cannot, for some good
reason beyond his own control,qualify within the time prescribed,and it will not be extended to cases where there is a neglect or refusal to qualify; and where the officer seeksan extension of the prescribed time he must show 8n extraordinaryreason therefor." 

### 34 Texas Juris., page 

### 361;Flatau
v. State, 

### 56 Tex. 93; 22 R.C.L., page 

### 451;46 Corpus Juris, ppa 

### 962-963.

Under the factsas detailed in your letter, it appears that the person elected to the office of Justice of the Peacewas incapacitatedby sicknessprior to and at the time of this election,and his incapacityhas continueddown to the present time; but he expects to regain his health and be able to hold the office. It thus appears that the failure of the person elected to the office of Justice of the Peace to qualify has been occasionedby a good reason beyond his
own control,and not by reason of neglect or refusal on his part to do so. It would thugs appear that in the circumstances of this case the failure to qualify does not work a forfeiture of the right to the office so as to create a vacancy thereinwhich the Commissioners'Court of Matagorda County is authorized to recognize and fill by appointment.

Confirmation of this view would appear to be found inArticle 5972, of the Revised Civil Statutes. This article provides in part as follows:Honorable Robert F. Peden, Jr., page 

### 3 O-3047

I!

. *

. An officermay be found to be incompetentwhen, by reason of some seriousphysical or mental defect, not existingat the time of his election,he has become unfit or unable to dischargepromptly and properly the duties of his office."

This latter article, of course, has reference to, and is found in the chapter on, removal of officers from their offices. Such removal, of course,presupposesa qualification for the office and an enteringupon the discharge of the duties thereof. However, the article is significantas reflecting a general publicpolicy in respect to officers incapacitatedby illness. By itsplain language, this article allows a removal of an officer,where he becomes unfit or unable to dischargepromptly and properly the duties of his officeby reason of seriousphysical or mental defects, only in the instancewhere the serious physical or mental defect occasioning suchunfitness~8s not in existenceat the time of his election to the office. By analogy, it would seem that if an officer is not to be removed, after qualification for and entering upon the discharge of the duties of his office,by reason of somephysical or mental defect rendering him incompetentto discharge the duties of the office,which seriousmental or physical defect existed at the time of his election,a person elected to the office of Justice of the Peacewho is prevented from qualifying for that officeby reason of some seriousphysical or mental defect which was in existenceat the time of the election should not forfeithis right to take and hold that office by reason of the fact that such seriousphysical defec.t

prevents his prompt qualification therefor.

You are advised that it is our opinion that the Commissioners'Court of Matagorda County,under the circums,tances

in the case presented, cannotdeclare a vacancy to exist in the office of Justice of the Peace, PrecinctNo. 

### 5, Matagorda County, Texas, and appoint a person to fill such office.

RWF:db:wc

APPROVED APRIL 

### 18, 19'41 s/GroverSellers FIRST ASSISTANT ATTORNEY GENERAL Yours very truly ATTORNEYGENERAL OF TEXAS
By s/R. W. Fairchild R. W. Fairchild Assistant

Approved Opinion CommitteeBy s/BWB Chairman