THE ATTORNEY GENEMAL 

OF TEXAS 

W’ILL WILSON 

ATl-OR- GENERAL 

June 25, 1962 

Honorable’ John Lawhon 

County Attorney 

Denton County Courthouse 

Denton, Texas 

Opinion No. WW-1359 

Re: Whether a Justice 

Precinct 1, Place 

. . --. . . 

of the Peace, 

1, vacated 

nis orrlce wnen ne announcea 

his candidacy for Justice of 

the Peace, Precinct 1, Place 

2; appointment to unexpired 

term; being the Democratic nominee for both Place 1 and Place 

2 at the same time on the General Election ballot; and holding 

Dear Mr. Dawhon: both offices, If elected to both, 

Your letter reads in part as follows: 

“All of the City of Denton lies In 

Justice of the Peace Precinct No. One. The 

city contains more than 8,000 Inhabitants, 

and therefore, Justice of the Peace Precinct 

No. One has two Justices of the Peace, deslgnated Place One and Plac,e Two In accordance 

with provisions of Article 2375 of the Revlsed Civil Statutes’ of Texas. 

“The office of Justice of the Peace is a 

civil office of emolument and operates in this 

county on a fee basis. Jim George was the duly 

elected and acting Justice of the Peace, Precinct No. One, Place One, and elected for a 

four-year term in November, 1960. W. A. Riggs 

was the duly elected and acting Justice of the 

Peace, Precinct No. One, Place Two, and was 

elected for a four-year term In November, 1958. 

“On or before the 5th day of February, 1962, 

Jim George announced his candidacy and filed an 

application with the County Democratic Chairman 

for a place on the ballot as Justice of the Peace. 

Precinct No. One, Place One and Place Two. On or 

before the 5th day of February, 1962, W. A. Riggs 

announced his candidacy and filed an application 

with the County Democratic Chairman for a place 

on the ballot as Justice of the Peace, Precinct 

No. One, Place Two. 
Hon. John Lawhon, Page 2 @W-13%) 

the County Democratic Executive 

Commitie;! placed on the primary ballot the 

following: 

For Justice of the Peace, Precinct One, 

Place One-- 

JIM GEORGE 

For Justice of the Peace, Precinct One, 

Place Two-- 

JIM GEORGE 

W.A. RIGGS 

“The County Democratic Executive Committee has certified to the County Clerk that 

Jim George won nomination and is the nominee 

for Justice of the Peace, Precinct No. One, 

Place One; and further that he received a 

majority of the votes cast In the election 

for Justice of the Peace, Precinct No. One, 

Place Two, and la also the Nominee for said 

office. It now appears that the name of 

Jim George will appear upon the November 

ballot as the nominee for Place One and Place 

TWO." 

After stating the above facts, you have asked the following questions: 

“1. When Jim George became an announced 

candidate for Justice of the Peace, Precinct 

No. One, Place Two, did he then and there vacate his office of Place One? 

“2. If your answer to Question No. 1 

la that Jim George did vacate the office of 

Place One when he became a candidate for 

Place Two, can he now be appointed to the 

office of Place One to fill out the unexpired 

portion of the term of said office. 

“3. SFnce the County Democratic Executive Committee has certified the name of Jim 

George as the nominee for both Place One and 

Place Two, can the name of Jim George appear 

upon the ballot for the Qeneral Election In 

November, 1962, as the nominee for said two 

separate offices? 
. 

.’ . 

Hon. John Iawhon, Page 3 (Ww-1359) 

"4. If your answer to Question No. 3 is 

that the name of Jim George can be placed 

upon the November General Election ballot 

as a candidate for both Place One and Place 

Two, can he, in the event that he is elected 

to both offfceq he sworn, commissioned, and 

hold both said offices at the same time?" '. 

In response to a telephone inquiry from this office, you 

have furnished us with the following information: That Judge 

Jim George filed his application for a place on the ballot as 

a candidate for Justice of the Peace, Precinct No. 1, Place 1, 

on January 18, 1962, and that he filed for Place 2 on February 

1, 1962. 

Section 18, Articie V, Texas Constitution, reads In part 

as follows: 

"Each organized county in the State . . . 

shall be divided from time to time, for the 

convenience of the people, Into precincts, not 

less than four and not more than eight. Dlvlaions shall be made by the Commisalonera Court 

provided for by this Constitution. In each precinct there shall be elected one 3ustice of the 

Peace and one Constable, each of whom shall hold 

his office for four years and until his successor 

shall be elected and qualified; provided that In 

any precinct in which there may be a city of 

8,000 or more inhabitants, there shall be elected 

two Justices of the Peace. . . ," 

This office held In Attorney General's Opinion No. 

WW-1251 that even though a Justice Precinct may contain within 

its boundaries a town having a population in excess of 8,000 

inhabitants, it need not have more than one Justice of the Peace, 

if the Commissioners Court decides that It la not needed "for 

the convenience of the people," and cited Meredith v. Sharp, 256 

S.W.2d 870 (Civ.App. 1953, error ref. n.r.e.). All of the City 

of Denton lies within Justice of the Peace Precinct No. One, 

and the City of Denton had a population of 26,844, according to 

the 1960 Federal Census, 

lg61-1962. 

as reported in the Texas Almanac for 

Since It la the will of the Comm‘issioners Court that 

there be two Justices of the Peace in Precinct No. One In Denton 

County, these two places are designated Place One and Place Two. 

Where any precinct office la of such a nature that two 

or more persons hold such office, with the result that candldates file for "Place No. 1," "Place No. 2," etc., they will 
Hon. John Lawhon, Page 4 (WW-1359) 

be elected to overlapping four-year terms. The odd numbered 

places are elected at one election, and the even numbered 

places are elected at the election held two years thereafter. 

Section 65, Article XVI, Texas Constitution. This provision of 

the Texas Constitution also provides in part: 

II 

. if any of the officers named herein fihia'lncludes Justices of the Peace 

r7 

shall 

announce their candicacy in any Genera , Special or Primary Election,,for any office of 

profit or trust under the laws of this State or 

the United States other than the office then 

held, at any time when the unexpired term of 

the office then held shall exceed one (1) year, 

such announcement or such candidacy shall constltute an automatic resignation of the office then 

held, and the vacancy thereby created shall be 

filled pursuant to law In the same manner as other 

vacancies for such office are filled." 

When Justice of the Peace Jim George filed his application 

for a place on the ballot as a candidate for the office of Justice of the Peace, Precinct No. 1, Place 2, then under the plain 

language of Section 65, Article XVI, Texas Constitution, such 

announcement constituted "an automatic resignation of the office 

then held," to-wit, the office of Justice of ,the Peace, Precinct 

1, Place 1. His announcement came at a time "when the unexpired 

term of the office then held" exceeded one (1) year. See Attorney General's Opinion No. WW-1253. The vacancy thus created in 

the office of Justice of the Peace, Precinct No. 1, Place 1, 

has not been filled. When the Commlaaloners Court selects a aucceaaor to the Honorable Jim George and such successor has qualified and has taken the oath of office, such successor will be the 

Justice of the Peace, Precinct No. 1, Place 1, until the next 

General Election. Section 28, Article V, Texas Constitution. In 

answer to your first question, we hold that the Honorable Jim 

George automatically resigned from his office of Justice of the 

Peace, Precinct No. 1, Place 1, when he announced his candidacy 

for the office of Justice of the Peace, Precinct No. 1, Place 2. 

In answer to your second question , we hold that the Honorable Jim George is not eligible for appointment to fill the 

vacancy in office which he created when he resigned as Justice 

of the Peace, Precinct No. 1, Place 1. See Attorney General's 

Opinion No. WW-788. 

At the time Judge George filed for Place 1, on January 

1.8, 1962, there was no vacancy in Place 1 to run for in 1962. 
. . 

. . 

Hon. John Lawhon, page 5 (WW-1359) 

Judge George occupied that post himself. His term of office 

did not expire until December 31, 1964. Judge George had not 

yet resigned from Place 1 

1962. 

, when he announced on January 18, 

The application for a place on the primary ballot to 

run for the unexpired term of Place 1 should have been refused. 

Elections held in 1962 are for the purpose of filling offices which 

commence on January 1, 1963, except in the case of races to fill: 

out unexpired terms; and no unexplred term existed on January 18, 

1962, when Judge George filed for then office. 

on February 1, 1962, about 14 days later. 

The vacancy occurred 

At the time Judge 

George filed his application to be a candidate for Place 1, no 

vacancy existed; therefore, his announc.ement was void, After he 

created the vacancy in Place 1 on February 1, 1962, by announcing 

for Place 2, he did not thereafter announce his candidacy for his 

own unexpired term. Since there was no authority in law to place 

the name of Judge George on the primary ballot, In view of the 

fact that he never announced afte.r the vacancy was created, the 

purported nomination of Judge George in the primary was void, and 

there is no Democratic nominee for Justice of the Peace, Precinct 

No, 1, Place 1. 

Art. 6.01, Texas Election Code, reads in part as follows: 

II The name of no candidate shall appear more than once upon the official ballot, 

except (a) as a~candldate for two (2) or more 

offices permitted by the Constltutlon’to be held 

by the same person; or (b) when a candidate has 

been duly nominated ~for the office of President 

or Vice-President of the United States and also 

for an office refulring a state-wide vote for 

election. , . . 

Under Article 6.01, Election Code, the Honorable Jim George 

would not be permitted to have his name printed twice on the same 

ballot for two different offices 

“(a)” in said statute. 

unless he came within exception 

Section 4 0 of Article,XV, Texas Constltutlon, provides in part: 

“No person shall hold or exercise, at 

the same time, more than one Civil Office 

of emolument, except of that of Justice of 

Peace, County Commissioner, Notary Public 

and Postmaster, Officer of the National Guard, 

the National Guard Reserve, and the Officers 

Reserve Corps of the United States and enlisted men of the National Ward, the National 

Guard Reserve, and the Organized Reserves of 

the United States, and retired officers of 
. . . 

Hon. John Lawhon, page 6 (NW-1359) 

the United States Army, Navy, and Marine 

Corps, and rstlred warrant officer-a, and 

retired enlisted men of the United States 

Army, Navy, and Marine Corps, unless otherwise specially provided herein. . . .' 

There have been a number of cases and Attorney General's 

Opinions which hold that one person may hold one of the enumerated 

offices in Section 40, Article XVI, Texas Constitution, and some 

other office of a different character, so long as the two offices 

are not Incompatible. But we have no case which holds that one 

person may hold the two offices of Justice of the Peace within 

the same precinct at the same time. Section 18, Article V, Texas 

Constitution, states that in Justice precincts in which there may 

be a city of 8,000 Inhabitants, "there shall be elected two Justices of the Peace." If Judge George could hold both offices at 

the same time, It would not comply with the requirement of "two" 

Justices of the Peace. The number of Justices of the Peace in 

Precinct 1 may be reduced to a single Justice of the Peace, but 

this can only be done by the Commissioners Court. Merldlth v. 

Since the Commissioners Court of Denton County 

een fit so to do, we must construe Sec. 40, Art. XVI, 

and Sec. 18, Art. V, Texas Constitution, together, and hold that 

while a Justice of the Peace may hold some other office not incompatible with the office of Justice of the Peace, he may not 

hold the offices of Justice of the Peace, Precinct 1, Place 1 

and Justice of the Peace, Precinct 1, Place 2 at the ssme time. 

This office has held in Attorney General's Opinion No. 

V-1529 that the county clerk acts in ministerial capacity In receiving certificates of nomination and In placing names of 

nominees on the general election ballot. That opinion also 

held that where a certificate is regular on Its face, the county 

clerk does not have the duty or authority to determine questions 

of irregularity or illegality In the nomination which would depend 

upon an ascertainment and determination of extraneous facts. 

Nevertheless, in this situation the clerk Is under a plain command 

of Art. 6.01, Election Code, that no candidate's name may appear 

twice on the same ballot, with certain exceptions which we now 

hold are not applicable. The clerk does not have to rely on 

extraneous facts to determine with his own eyes that the certification which he received from the County Chairman of the Democratic Party bears the name of the Honorable Jim George as a 

candidate for two different offices. 

We answer your third question by holding that the name 

of the Honorable Jim George may not appear on the General 

Election ballot as a nominee for Justice of the Peace, Precinct 

1, Place 1 and for Justice of the Peace, Precinct 1, Place 2, at 
. . 

. . . 

Hon. John Lawhon, Page 7 (WW-13%) 

the same time. We answer your fcurth question by holding 

that Judge George may not qualify and hold both places 

at the same time. If, perchance, he should be elected in 

the General Election to Place 2 as the Democratic nominee, and 

In the same election should be elected to Place 1 by means of 

write-in votes, Judge George would then be elected to both 

places, but he could only qualify and hold one of the offices. 

S U M M A R~,Y 

A Justice of the Peace for Precinct No. 1, 

Place 1 automatically resigned from such office 

when he announced his candidacy for Justice of 

the Peace, Precinct 1, Place 2, there being more 

than one year left in his term of office In Place 

1 at the time he announced his candidacy for Place 

2. Sec. 65, Art. XVI, Texas Constitution. 

A Justice of the Peace who automatically resigned his office by announcing his candidacy for 

another office, while there was more than one 

year left In the term of office which he vacated,. 

may not be appointed to serve until the next 

general election in the office he vacated. Attorney General's Opinion No. W-788. 

A candidate's name may not appear on the 

General Election ballot as a candidate for the 

office of Justice of the Peace, Precinct 1, Place 

1 and as a candidate for the office of Justice 

of the Peace, Precinct 1, Place 2. Art’. 6.01, 

Election Code. Section 18, Art. V, Texas Constitution. 

One person may not hold both the office of 

Justice of the Peace, Precinct 1, Place 1 and 

the office of Justice of the Peace, Precinct 1, 

Place 2 at the same time. Section 18, Art. V, 

Texas Constitution. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

REF:rk:ms 

BY 

Assistant 
Hon. John L$whon, page 8 (Ww-1359) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore