GERALD C. MANN ‘?)LCJMTlX 11. 

Honorable Robert F. Peden, Jr. 

County Attorney 

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 this Department 

upon the question whether the Commissioners' Court of 

Matagorda County can declare a vacancy to exist in the office of Justice of Peace of Precinct No. 5 of that county 

and appoint a successor, under the following state of facts: 

"The Justice of the Peace, Precinct No. 5, 

Matagorda County became sick about the middle of 

last year. The Commissioners Court appointed a 

man to fill the vacancy. The man who was sick 

was returned to office by the voters in the November 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 such matters fs correctly stated In the 

case of Ehlinger v. Rankin (C.C.A.) 29 S.W. 241, as follows: 

"The Commissioners Courts have not the authority to judicially determine a right of one to an office, or to remove a legally qualified officer from 

his office, for the jurisdiction in this matter 

lies within the exclusive cognizance of the DLstrlct 

Court; but if, as a fact, a vacancy does exist, then 

it becomes the duty of the Commissioners' Court to 

fill it." 

The question then, arising from your Inquiry, is 

this: Under the facts outlined by you, has the person elected 
Honorable Robert F. Peden, Jr., page 2 O-3047 

to the office oflJustice of the Peace of Precinct 

Matagorda County as a matter of law forfeited his 

the office to which he was elected, so that, as a 

No. 5 of 

right to 

matter of 

law, a vacancy therein exists which the Commissioners' Court 

may recognize and fill by appointment. 

. 

Revised Civil Statutes, 1925, Article 17, provides: 

"After each general election those who are 

elected to the various county and precinct offices 

shall qualify by taking the official oath and entering upon and assuming the duties of their respective 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 

generally regarded as directory only; and as a 

rule a failure to qualify within the time prescribed does 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 seeks an extension of the 

prescribed time he must show 8n extraordinary reason 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 facts as detailed in your letter, it appears that the person elected to the office of Justice of 

the Peace was incapacitated by sickness prior to and at the 

time of this election, and his incapacity has continued down 

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 occasioned by 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 

therein which the Commissioners' Court of Matagorda County 

is authorized to recognize and fill by appointment. 

Confirmation of this view would appear to be found 

in Article 5972, of the Revised Civil Statutes. This article 

provides in part as follows: 
Honorable Robert F. Peden, Jr., page 3 O-3047 

I! 

. * . An officer may be found to be incompetent when, by reason of some serious physical or 

mental defect, not existing at the time of his 

election, he has become unfit or unable to discharge promptly 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, presupposes a 

qualification for the office and an entering upon the 

discharge of the duties thereof. However, the article is 

significant as reflecting a general public policy in respect 

to officers incapacitated by illness. By its plain language, this article allows a removal of an officer, where 

he becomes unfit or unable to discharge promptly and properly 

the duties of his office by reason of serious physical or 

mental defects, only in the instance where the serious 

physical or mental defect occasioning such unfitness ~8s 

not in existence at 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 some physical or mental defect rendering him incompetent to discharge 

the duties of the office, which serious mental or physical 

defect existed at the time of his election, a person elected 

to the office of Justice of the Peace who is prevented from 

qualifying for that office by reason of some serious physical or mental defect which was in existence at the time of 

the election should not forfeit his right to take and hold 

that office by reason of the fact that such serious physical 

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, cannot declare a vacancy to 

exist in the office of Justice of the Peace, Precinct No. 5, 

Matagorda County, Texas, and appoint a person to fill such 

office. 

RWF:db:wc 

APPROVED APRIL 18, 19'41 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/ R. W. Fairchild 

R. W. Fairchild 

Assistant 

Approved Opinion Committee By s/BWB Chairman