HonorableMike Driscoll Harris CountyAttorney 1001Preston, Suite 634 Houston, Texas 

### 77002 OpinionNo. m-589
Re: Time of assumptionof office of individual who is elected to fillunexpired term as constable
DearMr. Driscoll:
You have providedus with the following information.A particular justice of the peace in Harris Countywas elected to a four-year term in 1982. He yas not renom:inated by the voters in his party'sprimary held inMay of 1986. In July of 1986, the constable of that precinct died, and his widqw was appointed to fill the vacancy in office created by her husband's d,zath until a successor could be elected at the next general electior.and assume office. The aforementioned justice of the peace wab hi:;party's nominee in the general election in November to fill the dlxeased constable's unexpired term; he won the general election. On Ilovember6, the Harris County commissioners canvassed the general electionvotes pursuant to section 67.016of the Election Code and notified the justice of the peace by certificate of election of his victory ir.the constable's race. You indicate that the justice would like to complete his term of office as justice of the peace and take office as constable on January 1, 1987. Accordingly, you ask whether the justice of the peace must file his bond, take his oath, and jmmediatelyassume office or may wait until January 1 to assume his ne\rduties. We conclude that he must qualify for office immediately. Article 17,V.T.C.S.., provides for the comencement of terms of office and sets forth the following:

The regular t,ermsof office for all elective state, district, county, and precinct offices of the State of lexas. excepting the offices of Governor, Lieutenant Governor, State Senator, and State Representat.ive, shall begin on the first day of January next following the general election at which saidrespective officesare regularly filled, and those who are elected to regular terms shall qualify and assune the duties of their respective offices on the fJ.rst day of January followingtheir

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election, or a8 soon thereafter as possible. Persons elected '51unexpired terms in the various state, district, county and precinct offices shall be entitled to $alify and assume the duties of theirrespective oEfices immediatelyupon receiving a certificate of ;lection, which certificate shall be issued imsm~iately following the official canvass of the %ults of the election at which they were electegG and they shall take office as soon thereafter8% possible. (Emphasisadded).
It is clear from even a cursory reading of article 17 that the newly-elected constable shmld qualify (by filinghis bond and taking his oath) as quickly as pcssible. As this office noted in Attorney General OpinionMW-521 (1982),

[alrticle 17 clearly provides that only those persons elected tounexpired terms qualify for and assume the dutic!sof their offices immediately upon receiving a certificate of election. Those elected to regula:!terms qualify for office 'on the firstday of January following their election, or as soon thereafteras possible.' See, e.g., Ex parte Sanders, 215 S.W.Zd 325 (Tex. 1948); Attorney General Opinions M-742, M-z>7 (1970); O-4994 (1942). We note that article XVI, section 17, OE the Texas Constitution requires that the person presently serving as constable shall remain in office and perform the duties of office until a successor is duly qualified. We furthernote thatan officer, in this instancea justice of thepeace, may divest himself of an o:Ifice before his successorhas qualifiedby himself qualifying for and entering upon the duties of another office which he cannot lawfully ho:Ldat the same time. Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.Zd 1004 (Tex. 1935); State ex rel. Peden v. Valentine, 198 S.W. 1006 (Tex.Civ. App. 1917,writ ref'd);Attorney GeneralOpinionM-627 (1970). Accordingly,we conclude thata justice of the peacewho has been elected to serve out the unexpired term of a constable should qualify for and assume office immediately.
SUMMARY
A person who is elected to serve out the unexpired term o:ia constable should qualify for and assume office immediately.

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JIM MATTOX AttorneyGeneral of Texas
JACK BIGHTOWJB First AssistantAttorney General
MARY KELLER ExecutiveAssistantAttorney General
RICK GILPIN Chairman,OpinionCommittee Preparedby JimMoellinger AssistantAttorney General

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