### THEA QEW-EY GENERAL 0 XAS

IApril 3, 1964

Honorable Bird Old, Jr. CountyAttorney Titus County Mt. Pleasant,Texas

Dear Sir: OpinionNo. C-235
Re: Length of term forwhich Justice of the Peace, Place 1, and Justice of the Peace, **Place** 2, Precinct 1 of Titus County, were elected in 1962.

You have requested an opinion on the following,question:
"In 1954 Precinct 1 of Titus County had one Justice of the **Peace, who**  **was** Justice of the Peace of Precinct 1. In 1954he **was** elected for a four-year term that commenced on January 1, 1955. In 1958 a Justice of the Peacewas again re-elected for **a** fouryear term commencingJanuary 1, 1959. on May 23,, 1960, the CommissionersCourt created the office ,of Justice of the Peace, Precinct 1, Place 2. and appointed a Justice of the Peace to the office. In 1962 both the Justice of the Peace for Precinct 1, Place 1, and **the** Justice of the Peace for Precinct 1, Place 2, were re-elected supposedly for a four-year term. Which, if either,was elected for a two-year term?" Article V. Section 18 of the Texas Constitution **contains** the followingprovision:

"Each organized county in the State now orhereafter existing, shallbe divided from time to time, for the convenience of the people, into precincts,not less

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than four and not more than eight. Divisions shallbe made by the CommissionersCourt provided forby this Constitution. In each such precinct there shallbe elected one Justice of the Peace and one Constable, each ofwhom shallhold his office for fouryears and until his successor shallbe elected and qualified; provided~~' that in any precinct inwhich theremay be a city of 8,000 or more inhabitants,there shall be elected two Justices of the Peace. ..-I' Parenthetically, itmay be observed that the creation of a second office of justice of the peace in a precinct containing a city of 8,000 or more inhabitants is discretionarywith the commissioners court, and actionby the commissionerscourt is necessary to bring the second office intobeing. Meredith v. Sharp, 256 S.W.2d 870 (Tex.Civ. App. 1953, error ref. n.r.e. 152 Tex. 437, 259 S.W.2d 175):Atty Gen. Op.WW-1251 (1962). Section 65 of Article XVI of the Constitution, adopted in 1954 along with other amendments increasing the terms of county and precinct officers from two years to fouryears, provides for staggered terms for these officers, so that approximately onehalf are elected every twoyears. Under its provisions, justices of the peace in precinctshaving only one justice received a fouryear term at the general election in 1954, and thereafter.were elected for a four-year term in 1958 and in 1962. This section provides. in part:

"Sec. 65. StaggeringTerms of Office - The following officers elected at the General Election in November, 1954, and thereafter: shall serve for the full terms provided in this Constitution: "(a)District Clerks; (b)County Clerks; (c)County Judges: (a)Judges of County Courts at Law, County Criminal Courts, County ProbateCourts and County Domestic Relations Courts; (e)County Treasurers; (f)Criminal DistrictAttorneys: (f)County Surveyors: (h) Inspectors.

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of Hides and Animals: (i)County Commissioners for PrecinctsTwo and Four: (j)justices of the Peace. "Notwithstandingother provisions of this Constitution, the following officers elected at the General Blection in November, 1954, shall serve only for terms of two (2)years: (a)Sheriffs: (b)Assessors and Collectors of Taxes; (c) DistrictAttorneys; (d)County Attorneys; (e)PublicWeighers; (f)County Coannissioners for Precincts One and Three: (9) Constables. At subsequent elections, such officers shall be elected for the full'termsprovided in this Constitution.
"In any district, county or precinctwhere any of the aforementionedoffices is of such nature that two (2)or more personshold such office,with the result that candidates file for 'PlaceNo. *,I 'PlaceNo. 2,' etc., the officers elected at the Gene&l Election in November, 1954, shall serve for a term of two (2) **years** if the designation of their office is an uneven number, and for a term of four (4) years if the designation of their office is an even number. Thereafter, all such officers shallbe elected for the terms provided in this Constitution."
The pattern set by Section 65 for staggered terms applies to offices created after 1954, aswell as to those then in existence. Attorney General's OpinionsWW-1292 (1962)and C-147 (1963). These opinions are reaffirmed. However, as to those offices that are of such nature that two or more personshold such office,with the result that candidates file for "PlaceNo. 1, Place No, 2," etc., the last quoted paragraph of Section 65 controls, It is noted that this provisionprovides that in 1954 if the designation of their office is an uneven number the termwill be for two years, and the termwill be for fouryears if the designation of their office is an evem number. This was for the purpose of staggering the terms of the various designatedplaces. The Constitution then provides, "Thereafter,all such officers shall be elected for the terms provided in this Constitution,"which is for fouryear terms. The various CommissionersCourts often create new places for Justices of the Peace and'it is in the discretion of the court to designatewhich places shallbe even or uneven numbers. Likewise, the Coaunissioners Court often abolishes such offices. We can find no language in this Constitutionalprwision

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that after theyear 1954makes a distinctionbetween whether the places are an even or an uneven number. Inasmuchas the new placewas created at a time that a four-year term would make it staggeredwith the other place,we do not pass upon the question whether one or the other of the Justices of the Peacewould have to run for a two-year term, if the newly created officewas created to begin at the same time as the term of the other Justice of the Peace. Adverting now to the facts of the situationat hand, it becomes evident thatwhen the CommissionersCourt of Titus County created the office of Justice of the Peace, Precinct 1, Place 2, on the 23rd day of Way, 1960, there then existed a **vacancy** in such officewhich the CommissionersCourt was authorized to fillby appointmentuntil the next general election in November of 1960. The officewas filledby appointment of the CommissionersCourt but 4 no election for such officewas held in the general election in November **of** 1960. Since Section 18 **of** Article V of the Texas Constitution provides that a Justice of the Peace shallhold office "...until his successor shallbe elected and qualified

..."and Section 17 ofArticle XVI of the Texas Constitution provides that "All officers within this State shall continue to perform the duties of their offices until their successors shallbe duly qualified",when the four-year term of office for Justice of the Peace, Precinct 1, Place 2, began on the 1st day of January, 1961, the personholding such officeby appointment of the CommissionersCourt of Titus Countybecame a hold-over officerby virtue of the failure to hold an election for such term of office in the Nwember, 1960, General Election. Hamilton v. State, 40 Tex.Crim. 464, 51 S.W. 217(1899); EX parte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1948).

**At the**  General Electionheld in November, 1962, there existed the following situationwith respect to the two Justice of the Peace offices in Precinct 1 of Titus County: the office designated as Justice of the Peace, Place 1, had been duly filled at the general election in **November,** 1958, for the four-year term

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beginning January 1, 1959, and ending December 31, 1962, therefore, election to this officewould be for a new four-year term beginningJanuary 1, 1963; the term for the office designated as Justice of the Peace, Place 2,which began on January 1, 1961, and ends on December 31, 1964,had not been filledby election or appointment,consequently election to this officewould be for the unexpired portion of the existing term. Section 27, Article 16, Texas Constitution;Attorney General's Opinion O-6923 (1945) *
We thereforehold that the person elected to the office of Justice of the Peace, Precinct 1, Place 1, at the general election in 1962was elected for a four-year term beginning on January 1, 1963, and ending on December 31, 1966, and the person elected to the office of Justice of the Peace, Precinct 1, Place 2, at the general.

election in 1962was elected.for the unexpired term of such officewhich began on January 1, 1961, and ends on December 31, 1964. SUMMARY

At the general election in November of 1962, the election to the office of Justice of the Peace, Precinct 1, Place 1, Titus County,was for a term of fouryears beginning January 1, 1963, and ending December 31, 1966: and the election to the office of Justice of the Peace, Precinct 1, Place 2, Titus County,was for the unexpired term of such officewhich began on January 1, 1961, and ends on December 31, 1964. Very trulyyours,
WAGGONER CARP Attor+ey General/of Tarps

NS:me BY \ Norman Suarez AssistantAttorney
.~

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APPROVED: OPINIONCOMMITTEE: W. V. Geppert, Chairman
V. F. Taylor Malcolm Quick Paul Phy W. 0. Shultz
APPROVEDFOR THEATTORNEYGENERAL By: Howard Mays

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