THE A~TORNEYGENERAX 

OF TEXAS 

WILL WILSON 

A-KSNEY GENERAI. September 88, 1958 

Honorable Noah Kennedy, Jr. 

County Attorney 

Nueaem County 

Corpus Chrllstl, Texas 

Dear Mr. Kennedy 8 

Opinion No. WW-367 

Re: If a vaaanoy oaauru in the 

offioe of' County Attorney 

prior to the general eleation in a year when the 

offiae of County Attorney 

Is not up for ale&ion, ‘aan 

the vaaanay be filled at 

the next general election 

and related questions. 

We have reaeivea your letter of August 26th in 

which you, ask the following questionsr 

“(1) If a oraanoy oaoum In the offiae of 

County Attorney prior to tie general eleatlon in 

a year when the office of County Attorney is not 

up for rleotlon, aan the vaoaney be filled at 

said general cleation? 

“(2) Aasumlng that the armwer to question 

number (1) is ‘yes*, wheat are the possible ways 

for a candid&e to get hias name on the ballot for 

the office of County Attorney fn the general election? 

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

~’ get his name on the ballot au an independent, when 

must hie appllaation be filed and does the.general 

law pertaining to lnaepenaents apply to the prerequisites for getting his name on 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 Noah Kennedy, 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 name on the ballot are 

the ssme as those presarlbed In said general 

law, then must each of the persons who signed 

his petition have refrained from voting In both 

the last prior primary and the last prlor runoff primary election ~of either politlaal party?" 

Seation 21 of Artiale V of the 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;4y Attorney 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, . , . 

Such vaaancies shall be filled by a majority vote 

of the members of said Court, present and voting, 

and the person chosen shall hold office until the 

next general eleotlon." (Kmphasls added). 

In our opinion, when a vaoanoy 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 

Sterrett v. 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 a valid election to be held for the unexpired term, the 

existence of the vacancy must become known in 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 names placea on 

the ballot, we think ft is clear that a valfa election can be 

held if the vacancy occura within the statutory time for nomlnation of independent candidates even though there fs no 

statutory method provided for the making of party nominations. 

Qllmore v. Waples, 188 S,W, 1037 (Tex. Sup,, 1916); Sterrett 

v. 0 rgan, supra; Attorney Generalga Opinion s-215. As thus 
. - 

Honorable Noah Kennedy, Jr., Page 3 (w-367). 

qualified, your first question is ,I- 

,' In your ae00na question 

answered "yea." 

you ask what are the poaslble ways for a person to get his name on the ballot as a 

aandldate for an unexpired term In the offlae of County Attorney. Article 6.01 of the &leatlon Code provides that do nanib 

shall appear on the official ballot except that of a candidate 

who was 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 made In the 

primPry eleatlons, both party ana Independent nominations for 

an unexpired term are subject to the same regulations aa nomlnations for a full term. If a vacanoy oaauw in a state or 

distrlat offioe too late for a nomination to be made In the 

primary election, the proper exeoutlve oommlttee of a polltioal 

i 

arty may rmmlnate a party aanaiaate'aa provided In Artlola 

.04 of the Eleation Oode, but the county executive aommlttee 

of a polltloal party eannot make an original nomination for a 

county offiae in olraumstanaes of this nature. Qllmore v. 

Attorney Qeneral’s Opinion S-215. I Gil more 

is stated that a political party may ielect 

not contrary to law and agreeable with 

party usage where no statuCory provision is made for nomlnatlon. From later aane8 It appears that the county aonventlon 

aould select a nominee for a aounty office, or the nomination 

could be made in the state convention in the event the aounty 

aonventlon did not make a nomination, 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 a polltioal party where the vacanoy oaours 

too late for a nomfnatlora to be made lm the Fegular county and 

state conventions, but as UlplRetfaal matter it appears that 

there Is no feasible way for a polftiaal party to make a nomlnation after Its aonventfons have been held. In aa8e of 

vaaanoiea In aounty offlcse6 ocaurlng too la%e for pa&y nomlnations to be made, *he only way for~a candidate to have his 

name ~plaoed on the ballot I.8 as aw independent eurdldate. 

Candidates maa also rum aa write-in aanaidate8 without having 

their names printed on the ballot. Sterrett v. Horgan, supra. 

In anawer to your third questlow, in the event a 

prospeatlve candidate deafFern to run for the Paexpired term 

of the offloe of County Attorney aa an Independent, hlr aandiaaay ,would be subject to *he provlrlotir of &tloler 13.50 - 

13.53, Texas ElectIon Code, excrepti as n&ed~Bolow, In our 

opinion. the deadlins for Piling the applfaation md cronsent 

to beaome a aanalaate (whfoh would be September 22, 1958, for 

the 1958 general election), fr not oontrolllng where the vaaanay 
Honorable Noah Kennedy, Jr., Page 4 (WW-367). 

occurs too late to afford candidates a reasonable time to 

aomplcte and file their appllcatlons before the ,deadllne. 

In Sterrett v. Hyer, Cause No. 16,058 in the Dallas Court of 

Civil Ap eals, 

reported P , 

d ecfded on October 5, 1956 (opinion not 

the Court had under conelderatlon the question of 

whether the deadline for filing was controlling 3.n the 

following situation. A vacancy had occurred in the office 

of Judge of a County Court at Law on September 1, 1956, but 

It was not finally determined that a vacancy 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 who had been appointed to, fill the vacancy filed 

his application au an independent candidate. The Court 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 and that the applicatipn should be 

received and acted upon by the County Judge i>n the same manner 

as though it had been filed within thirty days after the 

second primary eleotion. By similar reasoning, we think 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, What constitutes a reasonable 

time for candidates to file for the office of County Attorney 

of Nueces County will be a matter for the initial determination 

of the County Judge, the officer with whom the applications are 

to be filed. 

The answer to Question No. .(:k) .deptinda upon when a 

vacancy occurs. We have 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 on whlah 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 Noah Kennedy, 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, 

no vacancy would occur so as to allow.hls successor to be 

elected at the general election of 1958. 

Since no nomination for the office of County Attorney of Nueces County was mad& at either of the primary elections in 1958, we are of the opinion that signers of the 

Independent's application to have his name placed 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 

way candidates may run 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 an unexpired 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, no vacancy would occur so as 

to allow a successor to be elected at 

the general election between the date 

on which the resignation was submitted 
Honorable Noah Kennedy, Jr., Page 6 (~~-367). 

and the date on which It was to 

become effective. 

When there has been no nomination 

made In the'prtiary election, 

signers of an Independent's appllcatlon to have his name on the ballot 

need not have refrained from voting 

In the primary. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

TIM:jl 

Tom I; MaFarllng / 

Assistant 

APPROVED: 

OPINION COMMITPEG 

(tea. P. Blackburn; Chairman 

W. E. Allen 

Jack Goodman 

Leonard Passmore 

REVISWED FOR THJ3 ATTORNEY QENERAL 

BY: 

W. V. Geppert 

. 

. 

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