THEATBYORNEYGE~~~~~~ OF TEXAS AUNITIN

in.TEXANI WILL WILSON ATTORNRW GRNERAL

. October 23, 1958

Hon. JohnR. Coffee . .

CountyAttorney HowardCounty Re: Date on which a perBig Spring, Texas son elected to fill an unexpired term In the office of County Attorney Is entitled ,DearMr. Coffee: to take office.

Youhave requested an opinion on the following question:

“Whena 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 CountyAttorney, 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, ~RevlsedCivil I Statutes. Attorney General’s Opinion No. WW-426(1958) held, uiider slailar conetltutlonal and etatutory provisions, that a pereon elected to anunexpired term In the office of Sheriff la entitled to qualify andassumethe 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 CountyAttorney.

In reaching the foregoing conclusion, both in OplaiolpHW-426

and the present oplnlon, wehave 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 whoare elected to the various county andprecinct offices shall quallfy by taklng the official oath, andentering upon_. i Non. John R. Coffee, page 2 (VW-516)
rad usumlng the dutlea of their P8BVoCtlV8 offices on the flret day of Januarsrfollowl!%z tie last gethera elective, or as after 8s posrlblo. l * + Ueare of the opinion that thla statute cOmmen0ement

of regular term6of office to the date on uhloh persona l lbcted to mayaommboffloe. s&onthora-- applier only to the anddoes 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 wer4to take offloe. While the 1921 act does not expressly refer to the 1917act, It is In Identical language except for changing th4 dat4 from the first day of becember to the first day of JY andlaakingone or twominor changes in wording. Both In 191 and 1921, as well a8 In 1925whenArt1010 17 vaf4 enacted a8 a part of the Revised Civil Statutes, the regular tens of elective county andprecinct offices was twoyearo. Prior to 1917there had been no constitutional or statutory provision ?ixing the date on which the regular termwaeto comaenoo. The absence of anyprovlslon fixing the oossnemcement of the termwas discussed In Tomv. ?3e 721 (Tei.Clv.App. 1915, error raf. 7TIni&% 2: :I% noted Intopossible dates which might be taken as the time at vlrjch the regular term comenced, one being the date of the

l offloer80 qualification andthe other being at the time the return4 of the election iere osnvassed. Thecourt 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.

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Neither of these twbdates was corpletalp eatlbfaotory for the beglnnlhg of a regular term. If the date of qualif%oation wasto be taken be the comnencemqntof the torn, the commencement

andtenlnatlon of succeeding term could be defemed b$ the nerly elected officer~s delaying to qualify a8 soon a0hewas entitled to do so, thereby ruccesslvely and cumulatively deforrlng the cosmncbment of rabobquent t4v. Onthe other hand, adoption of the fiat4 of completing the’ election as the beglnalng of the termwould result In increasing or decreasing the .two-year term by a few da@, de- * epending on the date of the alectlon, which could range from November2 through November8, and the corresponding date of canvass. Thls.was the state of the lawwhenthe Legislature passed the 1917act. There was a need for a~statute fixing the beginning of regular terms on a definitely stated day not onlyHon. JohnR. Coffee, page 3 (~-516)

to eliminate the confusion as to which of the possible dates mentioned In Tomv. 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. Thedata onwhich a person elected to fill anunexpired 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 commencementof regular terms, the unexplrad termwould be only for the remainder of the full term of the elected predecessor andwould not be affected by the date on which the person elected to the unexpired termwanentitled to take.offlce or did in fact aesumethe office.

Statutes should be construed In the light of the circumstances existing at the time of their enactment andthe evil sought to be corrected. Worthamv. walker, 33 Tex. 255, 128S.W.2d 1138 (19 7); Texas &1. 0. R. Co. **V.** Ra;;road COW ml8slon, 145 Tex. 52 253SW 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 39Tex.Jur., Statutes, 895 and caues cited thereunder.

In the light of the foregoing discussion, weare of the opinion that the Le&ikllature had In mindthe beginning of the full terms only whenIt enacted this statute anddid not Intend for It to apply to unexpired terms. There Is another reason for concluding that the Legislature dld’not have unexpired terms In mindwhenthe 1917act waspassed. Prior to that act, unexpired terms in oountg andpreclnct.offlces after. the general election were either nonexistent or of such short duration 48not to warrant the attention of the Legislature. Since the terms were for only twoyeara, a newset of officers was elected to the eucceedlng full terms at each general election. IS the term of the newly elected officers commencedas soon as their election was completed, there wasnounexpired 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 anqe%pind term of ~afew 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 assumothat the Legislature had unexpired terms In mindwhenthis 

### statute *a8 enacted. Afterthe 1917 act and until the time whenthe terpls of county sad prscinct officers were Increased to four

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. Hon. JohnR. 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 andthe 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. Heckv. Ahlere L1 N&2& 531 3 (laont.sup. 215S.U.2d ~325 that Inactual uptrlence these terms were seldom If ever filled by eleotion -&nd

consequently there wasno 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. Assumingthat the Legislature in 1921 did take cognleance of theee unexpired term8 andIntended to makethe etatute apply to them, the result which the Legle-

‘~ lature Intended to acconplieh wouldhave been to deprive the person hlected to anunexpired term of the right to occupy the office and to deny him any term at all, beoauee .the etatute would not have permitted himto assume the offfce until the date on vhioh the unexpired term ended and the newfull term began. Ye think It Is unreasonable to assumethat the Leglelatur4 Intended any such result, and If It had so ln- $onded wethink It would have expressed that Intent In mdre explicit language than that used in the statute.

Noreover, weare of the opinion that an attempt to makethl8 statute .applPto 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 madeuntil the next general election or the next general election for the office. See, e.g., Art. V, Sets. 20, 21, 23and 28 of the Constitution. Wethink the clear Import of these constitutional provislone Is that the appointment 18 to be made only until the general eleotlon andthat the euccessor electsd to the unexpireil tez% Is eMitled to take offlce as eoon as his electlon 18 complrted. Thle i@ %nkeeping with a policy to roturn elective office8 to perrgie ohoe4n by,the people a8 Boonaa practicable. Bydeferrlng the date tin whiuhthe elected 8u~c4880~ could take offib& to e&e later date, the Lsglelature would b0 attempting to deprivethe elected eucoeeoor of 

### a portion of his term in vlb;trtlon of the Conrtltution. Cate v. Rose, 63 Ky. (2Dav.) 243 (1865). Wherea 8tatut4 Ia eueooptSITof two different ooaetmotlone, one of uh%ehwould eultaln It8 vrllditf and the oflur of uhleh Gould render It unconetltutlonal, that ;x$a.t&y~oa whloh uould.uphold Lt.8vblldlty should be adopt.&

. ., StatMOe, I 111 and oaeee olted thereunder. Theforego1 oonolu8ion is not in ctinfliot wit& Andereon v. Pareley, 37?.Y.26 39 (Tbx.Clv.Anp. 1931, error

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Hon. John R. Coifee, page 5 (WW-516) ref.), In which the constltutlonallty of irtlcle 17was su6- talned. That case Involved the date on which a full term In the otfloe of CountyCommissioner began, andthere Is nothing In the opinion to Indicate that the’ court waspassing on the appllcabllity or validity of the statute with respect to unexpired terms.

Having concluded that Article 17 doee not apply to unexpired.tems, wecomenext to the question of the time whena person elected to anunexpired termslaytake Office. Weare of the opinion that the provisions 3n the Constitution andArticle 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 

### aasoon ae he Is elected. However, a peraonls election Is not ~corpleted until the returns of the election have been official1 canvassed. Exparte Sanders, 147Tex. 248, 215 S.W.2d 325 (19487. In that case th S Court construed Article 29298-1, V.&S. (nowArt& l%yernonIs Election Code) as flxlng the date for the commencementof the regular terns In certain state and dletrlat offices without passing on Its appllaabllltg or aonetltutlonallty with respect to unexpired tern8 or dealdlng whena person elected .to an unexpired term would be entitled to take ofilce. Weare 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 Rxparte 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 anunexpired term. SUNNARY Aperson elected to fill anunexpired tern In

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.. the o?flce of County Attorney IS entitled to receive a certlflaate of electloti andto qualify andtake Off100 Immediately aiter the returns o? the general election at which he was elected have been aanvasaed. Your8very truly, WILLWILSON Attorney General of Texas .

.Hon. John R. Cotfee, page 6’(ww;516)

‘. APPR(WED:

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0~0. P’

.Eitiaiciurn, dh&an J. C. Davla, Jr. L. P..Lollar C. K. Rlcharde



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