Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. m-589 

Re: Time of assumption of office 

of individual who is elected to 

fill unexpired term as constable 

Dear Mr. Driscoll: 

You have provided us with the following information. A particular 

justice of the peace in Harris County was elected to a four-year term 

in 1982. He yas not renom:inated by the voters in his party's primary 

held in May 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 Ilovember 6, the Harris County commissioners 

canvassed the general election votes pursuant to section 67.016 of 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 jmmediately assume office or may wait until 

January 1 to assume his ne\r duties. 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,erms of 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 said respective offices are 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 following their 

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Honorable Mike Driscoll - Page 2 (JM-589) 

election, or a8 soon thereafter as possible. 

Persons elected '51 unexpired terms in the various 

state, district, county and precinct offices shall 

be entitled to $alify and assume the duties of 

their respective oEfices immediately upon 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 thereafter 8% possible. (Emphasis added). 

It is clear from even a cursory reading of article 17 that the 

newly-elected constable shmld qualify (by filing his bond and taking 

his oath) as quickly as pcssible. As this office noted in Attorney 

General Opinion MW-521 (1982), 

[alrticle 17 clearly provides that only those 

persons elected to unexpired terms qualify for and 

assume the dutic!s of their offices immediately 

upon receiving a certificate of election. Those 

elected to regula:! terms qualify for office 'on 

the first day of January following their election, 

or as soon thereafter as 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 

further note that an officer, in this instance a justice of the peace, 

may divest himself of an o:Ifice before his successor has qualified by 

himself qualifying for and entering upon the duties of another office 

which he cannot lawfully ho:Ld at 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 General Opinion M-627 (1970). 

Accordingly, we conclude that a justice of the peace who 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:i a constable should qualify for 

and assume office immediately. 

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Honorable Mike Driscoll - Page 3 (JM-589) 

JIM MATTOX 

Attorney General of Texas 

JACK BIGHTOWJB 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

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