## GENEMAL THE ATTORNEY

OFTEXAS

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 aJustice 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 1and Place 2at the sametime on the General Election ballot; andholding 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. Onehas twoJustices of the Peace, deslgnated Place Oneand Plac,e TwoIn 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 onafee basis. Jim George was the duly elected andacting 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 andacting Justice of the Peace, Precinct No. One, Place Two, andwas elected for afour-year term In November, 1958.

“Onor before the 5th day of February, 1962, Jim George announced his candidacy and filed an application with the County Democratic Chairman for aplace on the ballot as Justice of the Peace. Precinct No. One, Place Oneand Place Two. Onor before the 5th day of February, 1962, W.A. Riggs announced his candidacy and filed anapplication with the County Democratic Chairman for aplace 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 onthe primary ballot the following:
For Justice of the Peace, Precinct One, Place One-- JIMGEORGE
For Justice of the Peace, Precinct One, Place Two-- JIMGEORGE

W.A. RIGGS

“The County Democratic Executive Committee has certified to the County Clerk that Jim George wonnomination and is the nominee for Justice of the Peace, Precinct No. One, Place One; andfurther 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 nowappears that the name of JimGeorge will appear upon the November ballot as the nominee for Place Oneand Place TWO." After stating the above facts, you have asked the following questions:

“1. WhenJim George became anannounced

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 Onewhenhe became acandidate for Place Two, can he nowbe appointed to the office of Place Oneto fill out the unexpired portion of the term of said office. 

## “3. SFnce the County Democratic Executive Committee has certified the nameof Jim George as the nominee for both Place Oneand Place Two, can the nameof 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.

## 3is that the nameof Jim George can be placed upon the November General Election ballot as acandidate for both Place Oneand Place Two, can he, in the event that he is elected to both offfceq he sworn, commissioned, and hold both said offices at the sametime?" '. In response to atelephone inquiry from this office, you have furnished uswith the following information: That Judge Jim George filed his application for aplace onthe ballot as a candidate for Justice of the Peace, Precinct No. 1, Place 1, onJanuary 

## 18,1962, and that he filed for Place 2onFebruary 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 madeby 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 whomshall hold his office for four years anduntil his successor shall be elected and qualified; provided that In any precinct in which there maybe acity of 8,000 or more inhabitants, there shall be elected twoJustices of the Peace.

. . ,"
This office held In Attorney General's Opinion No. WW-1251that even though aJustice Precinct maycontain within its boundaries atown having apopulation 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 apopulation 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 twoJustices of the Peace in Precinct No. OneIn Denton County, these twoplaces are designated Place Oneand Place Two.

Where any precinct office la of such anature that two or more persons hold such office, with the result that candldates file for "Place No. 1," "Place No. 2," etc., they willHon. John Lawhon, Page 4 (WW-1359)

be elected to overlapping four-year terms. Theodd 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 namedherein 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 whenthe unexpired term of the office then held shall exceed one (1) year, such announcement or such candidacy shall constltute anautomatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law In the samemanner as other vacancies for such office are filled."
WhenJustice of the Peace Jim George filed his application for aplace onthe ballot as acandidate 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 cameat atime "when the unexpired term of the office then held" exceeded one (1) year. See Attorney General's Opinion No. WW-1253. Thevacancy thus created in the office of Justice of the Peace, Precinct No. 1, Place 1, has not been filled. Whenthe Commlaaloners Court selects a aucceaaor to the Honorable Jim George and such successor has qualified andhas 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, wehold that the Honorable Jim George automatically resigned from his office of Justice of the Peace, Precinct No. 1, Place 1, whenhe announced his candidacy for the office of Justice of the Peace, Precinct No. 1, Place 2.

In answer to your second question
, wehold that the Honorable Jim George is not eligible for appointment to fill the vacancy in office which he created whenhe resigned as Justice of the Peace, Precinct No. 1, Place 1. See Attorney General's Opinion No. WW-788.

Atthe time Judge George filed for Place 1, onJanuary 

## 1.8, 1962, there was novacancy in Place 1to 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. , whenhe announced onJanuary 18,

Theapplication for aplace onthe primary ballot to run for the unexpired term of Place 1should have been refused. Elections held in 1962 are for the purpose of filling offices which commence onJanuary 1, 1963, except in the case of races to fill: out unexpired terms; andnounexplred term existed onJanuary 18, 1962, whenJudge George filed for thenoffice. on February 1, 1962, about 14days later. Thevacancy occurred Atthe time Judge George filed his application to be a candidate for Place 1, no vacancy existed; therefore, his announc.ement wasvoid, After he created the vacancy in Place 1onFebruary 1, 1962, by announcing for Place 2, he did not thereafter announce his candidacy for his ownunexpired term. Since there was noauthority in law to place the nameof 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 wasvoid, 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 Thenameof nocandidate 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 sameperson; or (b) whena candidate has been duly nominated ~forthe office of President or Vice-President of the United States and also for anoffice refulring astate-wide vote for election.
, . . Under Article 6.01, Election Code, the Honorable Jim George would not be permitted to have his name printed twice onthe same ballot for twodifferent offices

“(a)” in said statute. unless he camewithin exception Section 

# 4

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

“Noperson shall hold or exercise, at the sametime, 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 menof the National Ward, the National Guard Reserve, andthe Organized Reserves of the United States, and retired officers of. . .

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

the United States Army, Navy, andMarine Corps, and rstlred warrant officer-a, and retired enlisted menof the United States Army, Navy, and Marine Corps, unless otherwise specially provided herein.

. . .'
There have been anumber of cases and Attorney General's Opinions which hold that one person mayhold one of the enumerated offices in Section 40, Article XVI, Texas Constitution, and some other office of adifferent character, so long as the two offices are not Incompatible. But wehave nocase which holds that one person mayhold the two offices of Justice of the Peace within the sameprecinct at the sametime. 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 twoJustices of the Peace." If Judge George could hold both offices at the sametime, It would not comply with the requirement of "two" Justices of the Peace. Thenumber of Justices of the Peace in Precinct 1 maybe reduced to asingle 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, wemust construe Sec. 40, Art. XVI, and Sec. 18, Art. V, Texas Constitution, together, andhold that while aJustice of the Peace mayhold some other office not incompatible with the office of Justice of the Peace, hemaynot hold the offices of Justice of the Peace, Precinct 1, Place 1 andJustice of the Peace, Precinct 1, Place 2at 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 onthe general election ballot. That opinion also held that where acertificate 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 aplain command of Art. 6.01, Election Code, that nocandidate's namemayappear twice on the sameballot, with certain exceptions which wenow hold are not applicable. Theclerk does not have to rely on extraneous facts to determine with his owneyes that the certification which he received from the County Chairman of the Democratic Party bears the nameof the Honorable Jim George as a candidate for two different offices.

Weanswer your third question by holding that the name of the Honorable Jim George maynot appear onthe General Election ballot as a nominee for Justice of the Peace, Precinct 1, Place 1and for Justice of the Peace, Precinct 1, Place 2, at. .

. . .

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

the sametime. Weanswer your fcurth question byholding that Judge George maynot qualify andhold both places at the sametime. If, perchance, he should be elected in the General Election to Place 2as the Democratic nominee, and In the sameelection should be elected to Place 1by means of write-in votes, Judge George would then be elected to both places, but he could only qualify andhold one of the offices.
SUMMAR~,Y
AJustice of the Peace for Precinct No. 1, Place 1automatically resigned from such office whenhe 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 1at the time he announced his candidacy for Place 2. Sec. 65, Art. XVI, Texas Constitution.
AJustice of the Peace whoautomatically 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,. maynot be appointed to serve until the next general election in the office hevacated. Attorney General's Opinion No. W-788.
Acandidate's namemaynot appear on the General Election ballot as a candidate for the office of Justice of the Peace, Precinct 1, Place 1and 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.
Oneperson maynot hold both the office of Justice of the Peace, Precinct 1, Place 1and the office of Justice of the Peace, Precinct 1, Place 2at the sametime. Section 18, Art. V, Texas Constitution. Very truly yours, WILLWILSON Attorney General of Texas

REF:rk:ms BY AssistantHon. John L$whon, page 8 (Ww-1359)

APPROVED:
OPINIONCOMMITTEE W.V. Geppert, Chairman

REVIEWED

FORTHEATTORNEY GENERAL By: Leonard Passmore