THEATBYORNEYGE~~~~~~ 

OF TEXAS 

AUNITIN in. TEXANI 

WILL WILSON 

ATTORNRW GRNERAL 

. 

October 23, 1958 

Hon. John R. Coffee 

. . 

County Attorney 

Howard County Re: Date on which a perBig Spring, Texas son elected to fill 

an unexpired term In 

the office of County 

Attorney Is entitled 

,Dear Mr. Coffee: to take office. 

You have requested an opinion on the following 

question: 

“When a candidate for the office of County 

Attorney 1s elected to fill the unexpired term, 

1s he entitled to take office ImedIately upon 

qualifying after the general election in November 

or does he take offlce on January lst?” I 

Article V, Section 21 of the Conetltutlon provides 

that*ln cam of vacancy In the office of County Attorney, the 

Comla~ionera Court of the county ahall have the power to ap- 

. point a County Attorney “until the next general election.” A 

blmllar provision Is contained in Article 2355, ~Revlsed Civil 

I Statutes. 

Attorney General’s Opinion No. WW-426 (1958) held, 

uiider slailar conetltutlonal and etatutory provisions, that a 

pereon elected to an unexpired term In the office of Sheriff 

la entitled to qualify and assume the office as soon as the 

results of the election have been officially canvassed by the 

Coraisalonars Court under Article 8.34 of the Election Code. 

This holding al%o applies to the office of County Attorney. 

In reaching the foregoing conclusion, both in Oplaiolp HW-426 and the present oplnlon, we have given consideration 

to Article 17 of the Revised Clvll~Statutes, which reads In 

i part as followa: 

“Art. 17. Date to qualify.--After each 

general election, those who are elected to the 

various county and precinct offices shall quallfy by taklng the official oath, and entering upon 
_. 

i 

Non. John R. Coffee, page 2 (VW-516) 

rad usumlng the dutlea of their P8BVoCtlV8 

offices on the flret day of Januarsr followl!%z 

tie last gethera elective, or as 

after 8s posrlblo. l * + 

Ue are of the opinion that thla statute 

cOmmen0ement of regular term6 of office 

to the date on uhloh persona l lbcted to 

may aommb offloe. 

s&on thora-- 

applier only to the 

and does not apply 

fill unexpired terms 

Article 17.1s a codification of an adt of the 

Legi818ture pasled in 1921 (Acts 1921, p. g6), which uas a 

m-enactment of a prior act passed in 1917 (Acts 1917, p. 

351) with a change In the date on which the electees wer4 to 

take offloe. While the 1921 act does not expressly refer to 

the 1917 act, It is In Identical language except for changing 

th4 dat4 from the first day of becember to the first day of 

JY 

and laaking one or two minor changes in wording. Both 

In 191 and 1921, as well a8 In 1925 when Art1010 17 vaf4 enacted a8 a part of the Revised Civil Statutes, the regular 

tens of elective county and precinct offices was two yearo. 

Prior to 1917 there had been no constitutional or statutory 

provision ?ixing the date on which the regular term wae to 

comaenoo. The absence of any provlslon fixing the oossnemcement of the term was discussed In Tom v. ?3e 

721 (Tei.Clv.App. 1915, error raf. 7TIni&% 2: :I% 

noted Into possible dates which might be taken as the time at 

vlrjch the regular term comenced, one being the date of the 

l offloer80 qualification and the other being at the time the 

return4 of the election iere osnvassed. The court stated that 

It belimed~the better rule to b0 the date of canvassing the 

retarnl but did not Wd’a flrmholdlng on the ques,tion. .’ 

Neither of these twb dates was corpletalp eatlbfaotory for the beglnnlhg of a regular term. If the date of 

qualif%oation was to be taken be the comnencemqnt of the torn, 

the commencement and tenlnatlon of succeeding term could be 

defemed b$ the nerly elected officer~s delaying to qualify 

a8 soon a0 he was entitled to do so, thereby ruccesslvely and 

cumulatively deforrlng the cosmncbment of rabobquent t4v. 

On the other hand, adoption of the fiat4 of completing the’ 

election as the beglnalng of the term would result In increasing or decreasing the .two-year term by a few da@, de- 

* e pending on the date of the alectlon, which could range from 

November 2 through November 8, and the corresponding date of 

canvass. 

Thls.was the state of the law when the Legislature 

passed the 1917 act. There was a need for a~ statute fixing the 

beginning of regular terms on a definitely stated day not only 
Hon. John R. Coffee, page 3 (~-516) 

to eliminate the confusion as to which of the possible dates 

mentioned In Tom v. Klepper was the correct one but also to 

avoid the defects Inherent In each of those dates.%‘here was 

not In 1917, nor is there now, any such need with respect to 

unexpired terms. The data on which a person elected to fill 

an unexpired term takes office cannot affect the duration 

either of that term or of the succeeding full term. Where 

the date of aommencement of the full term Is fixed at a sPOClfI~calendar date, the unexpired term ends on the date the succeeding full term begins. In the absence of a provlslon fixing 

a speolflc date for commencement of regular terms, the unexplrad 

term would be only for the remainder of the full term of the 

elected predecessor and would not be affected by the date on 

which the person elected to the unexpired term wan entitled to 

take.offlce or did in fact aesume the office. 

Statutes should be construed In the light of the 

circumstances existing at the time of their enactment and the 

evil sought to be corrected. Wortham v. walker, 33 Tex. 255, 

128 S.W.2d 1138 (19 7); Texas & 1. 0. R. Co. V. Ra;;road COW 

ml8slon, 145 Tex. 52 253 SW 2dfs6 m 34 T Dl t 

-4, 8 164. The. intent of’the.Leg&latuie In en~ctl~*t~e 

statute should be given effect even though to do so necessltates a departure from the literal purport of Its tarms. See 

39 Tex.Jur., Statutes, 8 95 and caues cited thereunder. 

In the light of the foregoing discussion, we are 

of the opinion that the Le&ikllature had In mind the beginning 

of the full terms only when It enacted this statute and did 

not Intend for It to apply to unexpired terms. There Is another 

reason for concluding that the Legislature dld’not have unexpired terms In mind when the 1917 act was passed. Prior to 

that act, unexpired terms in oountg and preclnct.offlces after. 

the general election were either nonexistent or of such short 

duration 48 not to warrant the attention of the Legislature. 

Since the terms were for only two yeara, a new set of officers 

was elected to the eucceedlng full terms at each general election. IS the term of the newly elected officers commenced as 

soon as their election was completed, there was no unexpired 

term then remaining in an off160 In which a vaoancf had occurred. 

If the full term’dld not begin untll.two years after the date 

on which the elected predecesror had quallflad, there could have 

been an qe%pind term of ~a few days still remaining after the 

electlOn, results were declared, but In view of the well-known 

fact that persons rarely lf ever aeek slection to terms of 

such short duration It would be unreasonablr to assumo that 

the Legislature had unexpired terms In mind when this statute 

*a8 enacted. 

After the 1917 act and until the time when the 

terpls of county sad prscinct officers were Increased to four 

‘ 
‘. 

Hon. John R. Coffee, page 4 (WU-516) 

years, there wae a brief unexpired ten after the general 

election following a vacancy in the office--the Interval 

bbtwoen the election and the first day of Deoomber, extende4 by the 1921 act to the first day of January. It would 

have Won poerrlble for persons to run for and be elected to 

those brie? unexpired terms. State ex rdl. Heck v. Ahlere 

L 

1 N&2& 531 

3 (laont.sup. 

215 S .U.2d ~325 that 

Inactual uptrlence these terms were seldom If ever filled 

by eleotion -&nd consequently there was no real need for fixing 

a tiPlo for l leoteo8 to take offlce.~Thls circumstance polnte 

to the conclusion that the LegUlature In 1921 also did not 

,havo unexpired texms In mind. Assuming that the Legislature in 

1921 did take cognleance of theee unexpired term8 and Intended 

to make the etatute apply to them, the result which the Legle- 

‘~ lature Intended to acconplieh would have been to deprive the 

person hlected to an unexpired term of the right to occupy 

the office and to deny him any term at all, beoauee .the etatute would not have permitted him to assume the offfce until 

the date on vhioh the unexpired term ended and the new full 

term began. Ye think It Is unreasonable to assume that the 

Leglelatur4 Intended any such result, and If It had so ln- 

$onded we think It would have expressed that Intent In mdre 

explicit language than that used in the statute. 

Noreover, we are of the opinion that an attempt 

to make thl8 statute .applP to unaxplred terms’would have 

rendered It unconatltutlonal ineofar as It related to unexpirod terms In office8 wherein the Constitution provided that 

appointment8 to fill vacancies were to be made until the next 

general election or the next general election for the office. 

See, e.g., Art. V, Sets. 20, 21, 23 and 28 of the Constitution. 

We think the clear Import of these constitutional provislone 

Is that the appointment 18 to be made only until the general 

eleotlon and that the euccessor electsd to the unexpireil tez% 

Is eMitled to take offlce as eoon as his electlon 18 complrted. 

Thle i@ %n keeping with a policy to roturn elective office8 to 

perrgie ohoe4n by,the people a8 Boon aa practicable. By deferrlng the date tin whiuh the elected 8u~c4880~ could take offib& to e&e later date, the Lsglelature would b0 attempting 

to deprive the elected eucoeeoor of a portion of his term in 

vlb;trtlon of the Conrtltution. Cate v. Rose, 63 Ky. (2 Dav.) 

243 (1865). Where a 8tatut4 Ia eueooptSITof two different 

ooaetmotlone, one of uh%eh would eultaln It8 vrllditf and 

the oflur of uhleh Gould render It unconetltutlonal, that 

;x$a.t&y~oa whloh uould.uphold Lt.8 vblldlty should be adopt.& 

. ., StatMOe, I 111 and oaeee olted thereunder. 

The forego1 oonolu8ion is not in ctinfliot wit& 

Andereon v. Pareley, 37?.Y.26 39 (Tbx.Clv.Anp. 1931, error 
. 

Hon. John R. Coifee, page 5 (WW-516) 

ref.), In which the constltutlonallty of irtlcle 17 was su6- 

talned. That case Involved the date on which a full term In 

the otfloe of County Commissioner began, and there Is nothing 

In the opinion to Indicate that the’ court was passing on the 

appllcabllity or validity of the statute with respect to unexpired terms. 

Having concluded that Article 17 doee not apply 

to unexpired.tems, we come next to the question of the time 

when a person elected to an unexpired term slay take Office. 

We are of the opinion that the provisions 3n the Constitution 

and Article 2355, R.C.S., llmltlng appointments until the next 

general election by necessary implication give the person elected 

to fill the remainder of the unexpired term the right to take 

office aa soon ae he Is elected. However, a peraonls election 

Is not ~corpleted until the returns of the election have been 

official1 canvassed. Ex parte Sanders, 147 Tex. 248, 215 S.W.2d 

325 (19487. In that case th S Court construed Article 

29298-1, V.&S. (now Art& l%yernonIs Election Code) as 

flxlng the date for the commencement of the regular terns In 

certain state and dletrlat offices without passing on Its appllaabllltg or aonetltutlonallty with respect to unexpired 

tern8 or dealdlng when a person elected .to an unexpired term 

would be entitled to take ofilce. We are of the opinion that 

this rtatute wee Intended to flx the commencement of regular 

temo only and that It would be unoonstltutlonal under Article 

Iv, Soatlon 12 of the Constitution ii it did apply to unexpired tena. While Rx parte Sanders does not rule on that @estlon, ,thr holding that an election 1s not oomplete until the 

retiarns are aanvassed would apply to all elections, whether 

Sor a full tern or for an unexpired term. 

SUNNARY 

A person elected to fill an unexpired tern In 

‘.. the o?flce of County Attorney IS entitled to receive 

a certlflaate of electloti and to qualify and take 

Off100 Immediately aiter the returns o? the general 

election at which he was elected have been aanvasaed. 

Your8 very truly, 

WILL WILSON 

Attorney General of Texas 

. 

. 
Hon. John R. Cotfee, page 6’(ww;516) 

‘. 

APPR(WED: . . 

0~0. P’. Eitiaiciurn, dh&an 

J. C. Davla, Jr. 

L. P..Lollar 

C. K. Rlcharde 

w;v. 

. . . 

. 

tippert 

., 

. . . 

, 

‘. 

: 

. . 

. 

.’ 

. . 

:. 

. 

. . . 

.’ 

. 

.