### THE 

## A~TORNEYGENERAX OF TEXAS

WILL WILSON **A-KSNEY GENERAI.**  September 88, 1958
Honorable NoahKennedy, Jr. County Attorney Nueaem County Corpus Chrllstl, Texas

Dear Mr. Kennedy8 Opinion No. WW-367 Re: If avaaanoy oaauru in the offioe of'County Attorney prior to the general eleation in a year whenthe offiae of County Attorney Is not up for ale&ion, ‘aan the vaaanay be filled at the next general election and related questions. Wehave reaeivea 

### yourletter of August 26th in which you,ask the following questionsr

“(1) If 

### aoraanoy oaoum In the offiae of County Attorney prior to tie general eleatlon in a year whenthe office of County Attorney is not upfor rleotlon, aan the vaoaney be filled at said general cleation?

“(2) Aasumlng that the 

### armwerto question number (1) is ‘yes*, wheatare the possible ways for a candid&e to get hiasnameon the ballot for the office of County Attorney fn the general election?

“(3) If It is possible for a oandldate to

~’get his nameon the ballot 

### auan independent, when must hie appllaation be filed and does the.general law pertaining to lnaepenaents 

### applyto the prerequisites for getting his nameon the ballot?

.

“(4) If the County Attorney tenders his resignation beforq the general election ‘to take &ff&at boa 'Jamua~.'1,-195~1~9~'aohs~'thib &+&te-& ".' vaaanay on the date of tender suah as would permit such vacancy to be filled at the next generol election?Honorable NoahKennedy, Jr., Page 2 (~~-367).

“(5) If you have answered question Number (3) to the effect that the general law relating to Independents does apply and that his prerequlsltes for getting his nameon the ballot are the ssmeas those presarlbed In said general law, then must each of the persons whosigned his petition have refrained from voting In both the last prior primary andthe last prlor runoff primary election ~ofeither politlaal party?" Seation 21 of Artiale V

### ofthe Constitution of Texas provides In part as follows:

II In case of vacancy the Commissioners Court of ch&dounty shall have the power to appoint a Coun;4yAttorney until the next general election.

. *

. (hphasls added). Artlale 2355 of Vernon's Civil Statutes provides: "The oourt shall have power to fill vanamoiee in the office of: a.
. a County“'Attorney,

. , . Suchvaaancies shall be filled by amajority vote of the membersof said Court, present andvoting, and the person chosen shall hold office until the next general eleotlon." (Kmphasls added). In our opinion, whenavaoanoy ooours in the office of County Attorney, such ,vaaanay Is to be fllled Initially by an appointment by the Commissioners I Court, ana a ~uoaessor Is to be eleated at the nextgeneral eleotion following the occurrence of the vacancy. 201 B 

### Sterrettv.Morgan,294 S.W.2a Tex. (195 ); Clv. App., 1956); Attorney General's Opinion WW-426

Attorney ffeneral's Opinion S-215 (1956). This general rule Is probably subjeetto the qualification that in order for avalid election to be held for the unexpired term, the existence of the vacancy mustbecome knownin sufficient time prior to the date of the eleotfon to put the public on notice that the vacancy is to be fflled at that election. See Cunninghsm v, Queen, 96 S,W.2d 798, 800, Headnote 2 (Tex, Civ. App., 1936 error dism.). Without passing on the question of':' whether a GalId election could be held where the vacancy occurs too late for candfdates to have their namesplacea on the ballot, wethink ft is clear that a valfa election can be held if the vacancy occura within the statutory time for nomlnation of independent candidates even 

### thoughtherefsno statutory method provided for the making of party nominations. Qllmore v. Waples, 188 S,W, 1037 (Tex. Sup,, 1916); Sterrett v. 0rgan, supra; Attorney Generalga Opinion s-215. Asthus. -

Honorable NoahKennedy, Jr., Page 

### 3 (w-367).

qualified, your first question is ,I- ,' Inyour ae00na question answered "yea." you ask what are the poaslble ways for a person to get his nameon the ballot as a aandldate for anunexpired term In the offlae of County Attorney. Article 

### 6.01of the &leatlon Codeprovides that do nanib shall appear on the official ballot except that ofa candidate whowas aatually nominate8 either as a party nominee or a8 a non-partisan or Independent aanaiaate. If the vaaancy oaaurs In sufficient time for party nominations to be madeIn the primPry eleatlons, both party ana Independent nominations for anunexpired term are subject to the sameregulations aa nomlnations for a full term. If a vacanoy oaauw in a state or distrlat offioe too late for a nomination to be madeIn the primary election, the proper exeoutlve oommlttee of a polltioal iarty may rmmlnate a party aanaiaate'aa provided In Artlola .04 

### of the Eleation Oode, but the county executive aommlttee of apolltloal party eannot makean original nomination for a county offiae in olraumstanaes of this nature. Qllmore v.

Attorney Qeneral’s Opinion S-215. I Gilmore is stated that 

### apolitical party mayielect

not 

### contrarytolawandagreeablewith party usage where no statuCory provision is madefornomlnatlon. Fromlater aane8 Itappears that the county aonventlon aould select a nominee for a aounty office, or the nomination could be madein the state convention in the event the aounty aonventlon did not make

### anomination, Brewster 0. Haesez, 

### 232 S.w.2d 

### 678 (Tex. DIV. App. 1950); Wlll’iams v. Runtress, 272 S.W.2d 

### 87 (Tex. Sup., 1954 * There has been no deolslon on whether my other method of~noti~atlon for a aounby offloe would be open to apolltioal party where the 

### vacanoyoaours too late for a nomfnatlora to be madelmthe Fegular county and state conventions, but 

### asUlplRetfaal 

### matter it appears that there Is no feasible wayfor 

### apolftiaal 

### partyto makea nomlnation after Its aonventfons have been held. In 

### aa8eof vaaanoiea In aounty offlcse6 ocaurlng too la%e for 

### pa&y nomlnations to be made, *he only wayfor~acandidateto have his name~plaoed on the ballot I.8as awindependent eurdldate. Candidates maa

### alsorum

### aawrite-in aanaidate8 without having their namesprinted on the ballot. Sterrett v. Horgan, supra.

In 

### anawer to your third questlow, in the event a prospeatlve candidate deafFernto run for the Paexpired term of the offloe of County Attorney aa an Independent, hlr aandiaaay ,wouldbe subject to *he provlrlotir of &tloler 

### 13.50- 

### 13.53,Texas ElectIon Code, excreptias n&ed~Bolow, In our opinion. the deadlins forPiling the applfaation md cronsent to beaome a aanalaate (whfoh would be September 22, 1958, for the 1958 general election), fr not oontrolllng where the vaaanayHonorable NoahKennedy, Jr., Page 4 (WW-367).

occurs too late to afford candidates a reasonable time to aomplcte andfile their appllcatlons before the ,deadllne. In Sterrett v. Hyer, CauseNo. 16,058 in the Dallas Court of Civil Apeals, reported ,

P decfded on October 5, 1956 (opinion not the Court had under conelderatlon the question of whether the deadline for filing was controlling 3.nthe following situation. Avacancy had occurred in the office of Judge of a County Court at Lawon September 1, 1956, but It wasnot finally determined that avacancy In that office was subject to belng,fllled at the 19% general election until the Court of Civil Appeals rendered its deaision in Sterrett v. Morgan, 294 ‘S.Y.2d 201, on September 28, 1956. t that, decision, and’subeequent to the statutory deadline, theeEerson whohad been appointed to, fill the vacancy filed his application au an independent candidate. TheCourt held that under the circumstance~s of the case the candidate had not had a reasonable oppotiunlty to comply\with the letter of the law in the matter of the filing 

### of his kpplication aa an independent candidate andthat the applicatipn should be received and acted upon by the County Judge i>nthe samemanner as though it hadbeen filed within thirty days after the second primary eleotion. Bysimilar reasoning, wethink candidates are entitled to a reasonable time within which to file their applications after the vacancy occurs, but in any event the application must be filed In sufficient time to permit the election officers to have the ballots prepared in accordance with statutory requirements, Whatconstitutes a reasonable time for candidates to file for the office of County Attorney of Nueces Countywill be amatter for the initial determination of the CountyJudge, the officer with whomthe applications are to be filed.Theanswer to Question No. .(:k).deptindaupon whena vacancy occurs. Wehave found no statute regulating the resignation of a County Attorney to take effect at a future date. Article 4.09 of the Election Code relates to vacancies to be filled by a special eILectlon only, and since vacancies In the qffice of County Attorney are to be filled by appointment until the next general election, such statute Is not appllcable. However, It may;be noted that the provision in Article 4.09 permlttlng the holding,of, a special election prior to the effective date of a resignation to become effective at a future date was added because~,the Legislature was of the opinion that express etatut.ory~~a~thorfty was necessary to enable the holding of an election for.an unexpired term prior to the ~date onwhlah the reafsnation became.effective. See Attorney General~s Opinion O-g093 (1943) for a dfroussion of.the background of this amendment, popularly called the “cfirner Amend-

. .., i;,:::.. ,,Honorable NoahKennedy, Jr., Page 5 (~~-367).

\ merit." It seems to us that if the Incumbent County Attorney resigns before the general election of 1958, with such reslgnation to be effective after the general election of 1958, novacancy would occur so as to allow.hls successor to be elected at the general election of 1958.

Since nonomination for the office of County Attorney of Nueces County wasmad&at either of the primary elections in 1958, weare of the opinion that signers of the Independent's application to have his nameplaced on the ballot need not have refrained from voting In either of the two primary elections.

SUMMARY

Vacancies In the office of County Attorney are to be filled by the Commissionersf Court, such appointee to serve until his successor is elected at the next general election. If the vacanay occurs too late for party nominations to be made, the only waycandidates mayrun In the general election Is as Independent candidates or write-ln,candfdates. Articles 13.50 - 13.53, Eleation Code, govern the candidacy of independent candidates for anunexpired term In the offlce.of County.Attorney, except that the statutory deadline for filing the application and consent to candldacy is not controlling where the vacancy occurs too late to afford the candldates a reasonable time to complete snd file their appllcatfons before the deadline. If a resignation is submitted before the general election, with such reslgnation to be effective after the general election, novacancy would occur so as to allow a successor to be elected at the general election between the date on which the resignation was submittedHonorable NoahKennedy, Jr., Page 6 (~~-367).

and the date on which It was to become effective. Whenthere has been nonomination madeIn the'prtiary election, signers of an Independent's appllcatlon to have his nameon the ballot need not have refrained from voting In the primary. Yours very truly,

WILLWILSON Attorney General of Texas

TIM:jl TomI; MaFarllng / Assistant

APPROVED: OPINIONCOMMITPEG (tea. P. Blackburn; Chairman W.E. Allen Jack Goodman Leonard Passmore REVISWED

FORTHJ3

ATTORNEY QENERAL BY: W. V. Geppert

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