TEEATTORNEYGENERAL OF TEXAS

FVILI. WILSON
A’CFORNEY **OENERAL**

Hon. EddB. Keyes County Attorney TomQreen County San Angelo, Texas

Dear Mr. Keyes: January 6, 199

o- 7~08 

# v-77/ Opinion No. W-541 Re: Questions relating to the existence of a vacancy in the office of constable and the valldfty of an election to fill the’vacancy under the conditions stated. Youhave requested an opinion on the existence of avacancy in the office of constable and the validity of an election to fill the vacancy under the conditions set out in your request, which are summarized as follows:

“Amanwas elected to the office of constable in the general election of 1954. Hedid not run for office nor washe elected at the general election in 1956. Hehas continued to ho,ld this office, receiving pay until the general election on November 4, 1958, at which time there was awrite-in campaign in which he was defeated. Not until then was It discovered that the above situation existed. "Article 18, Revised Civil Statutes, states that an office holder holds over until aperson is elected or appointed and qualifies. Article 2355 states that the commissioners court shall fill vacancies In the office of constable.snd that the person chosen shall hold office dntll the next general election. Article 6883 states that whenever any person elected constable neglects or refuses to give bond and take the offlclal oath within twenty days after notice of his election, the office shall be deemed vacant.

“The thought here is that, first, there was avacancy on January 1, 1957, whenthe incumbent.
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Hon. EddB. Keyes, page 2 (WW-541)

failed to qualify, and a8a result there was a vacancy. Contrary to that thought is, the lncumbent holds over until aperson is elected or appointed; as aresult, novacancy has existed until it was known that the incumbent has failed to meet the requirements. Asaresult, it develops<that It is necessary to decide whether a : vacancy existed.’ Supplementing your opinion request, you have conf%rmed our inference that the office of constable was not listed on the printed ballot at the 1958 general election, and the writeIn votes were cast by the voters having written In both the title of the office and the name of the person for whomthey wished to vo,te.

“Under Article ‘m, Section 65’df the Constitution and Article 17’of the Revised Civil Statutes, the person who was elected to the office of constable in the general election of 1954 received aterm of two years only, which expired on December 31, 1956. The succeeding term was for four years, beginning on January 1, 1957 and expiring on December 31, 1960, and regularly would have been filled at the general election in 1956. Since no one was elected in 1956 to fill this term, the office became constructively vacant on January 1, 1957, and the vacancy was subject to being filled by appointment of the commissioners court until the general election In 1958, at which time an election should have been held to fill the remainder of the term which will expire on December.31, 1960. If the write-in votes cast for this office at the 1958 general election constituted avalid election, the person whoreceived aplurality of the votes is entitled to the office for the remainder of the unexpired term. Onthe other hand, If no one was validly elected to the unexpired term at the 1958 general election, the office continues to be constructively vacant and is subject to being filled by appointment of the commissioners court until the general election in 1960.

The Incumbent whowas elected in 1954 was entitled to hold over into the newterm, In accordance with Article XVI, Section 17of the Constitution and Article 18of the Revised Civil Statutes, until a successor qualified. See cases cited in 34 Tex.Jur., Public Officers, 831. Wedo not believe the incumbent’s failure to qualify for the newterm is material. A hold-over officer is not required to qualify for the newterm In order to continue to perform the duties of the office. State v. Jordan, 228S.W.28 921 (Te~.Clv.App. 1930, error dism;)-r'^‘lfhe had attempted to qualify for the newterm by taking anew oath and giving anewbond, he would'not have acquired any further right to the office than as ahold-over, since he had been neither elected nor appointed to the newterm. But the fact thatHon. EddB’,Keyes, page 3 (WW-541)

he was holdiruz over did not orevent there beinn avacancv in the.sense thai the office wai subject to being-filled by”appointment. State v. Cocke, 54Tex. 482 (1881); Maddoxv. York, 54 S.W. 24 (Tex.Civ.App. 1899, affirmed 93Tex. 275 55SW ;Tom v. Klepper, 172 S.W. 721 (Tex.Civ.App. 19i5, error ealnnina with Januarv 1, 1957. uoon the failure to elect som:one a; the 1956 general eiectibn, there was a constructive vacancy In the office which was subject to being filled by appointment of the commissioners court until the general election in 1958, even though Article V, Section 18 of the Constitution provides that a constable shall hold office “until a successor is elected and qualified.” State v. Cocke, supra; Tomv. Klepper, supra. Regardless of whether an appointment wasmade, the remaining portion of the unexpired term was subject to being filled by election at the general election in 1958.

Wecome then’to.the question of whether there. was avalid election of a successor at the 1958 general election. If there was avalid election, the elected successor is entitled to assume the office as soon as his election has been officially declared. Att'y Gen. Op. ww-516 (1958). If there was not avalid election, the hold-over incumbent continues in office as ahold-over until a successor has qualified, but the commissioners court mayappoint someone to fill the vacancy until the general election in 1960.

Thevalidity of the election depends onwhether the voters aenerallv knewor should have knownthat an election for the office wastakIng place. Cunningham v. Queen, 96S.W.2d 798 (Tex.Clv.App. 1936). If the office had~.been included in the order of the county judge calling the general election and the title of the office had been printed on the ballot, avalid election could have been held by means of write-in votes even thouah no candidate had auallfled to have his nameorinted on the ballot and thouah only a small fraction of the voters wrote in the nameof acand.ldate. Sterrett v. Morgan, 294 S.W.2d 201

1956); Cunningham v. Queen, supra; Att‘y Cen. Op. There is noTexas case de ziding whether there can be a-valid eleotion bymeans of writing in both the title of the office and the nameof the candidate where the office is not listed on the ballot. In the Cunningham case, which Involved an attempt to nominate a candidate at the second primary by this method, the court held that there was novalid election under the fact6 in that case, but It did not go so far as to hold that avalid election could not have been held under any circumstances If the office was not listed on the ballot. The case is also distinguishable from the present fact sltuatlon because write-in votes are not permitted at a second prlmary, and this was not a second primary but was a general election.Hon. EddB. Keyes, page 4 (WW-541)

In other jurisdictions the cases aresin irreconcilable conflict on the question of whether avalid election can be held where the office is not listed on the ballot. For our opinion weadopt the principles set out in the following cases as representing what weconsider to be the better views: People v. President of Village of Wappinger's Falls, 144 N.Y. 6lb 39 E b4 (lt195)* Carlough v. Ackerman, 74N.J.L. 16, 64 itl. f&4*(&6); Se&d v. Foutch, 44 Mich. 89, 6N.W. 110 (1880); State,v. Turnbull 212 Mlnn. 382 3N.W.2d 674 (1942); dissentAngie v. Hayes, 146 Ohio St. 681, 76 N.E.2d 869 (1947).

Onthe basis of the foregoing authorities, weare of the opinion that the ordering of an election for the office and the listing of the title of the office on the ballot are not absolutely essential to the validity of the election. The failure of the election officers to dothese things cannot defeat the right of the voters to fill the office by election, and the voters have the right to write in both the title of the office and-the nameof the candidate of their choice. If the voters generally had notice,through other sources that an election for the office was taking place, the election would be valid even though only a small portion of the persons voting at the election availed'themselves of this right. Onthe other hand, the mere fact that an office IS legally subject to being filled at the election Is not conclusive that the voters knew or should have knownthat an election for the, office was taking place, especially where the office is not regularly filled at that election.Whether the voters generally knewor should have knownthat an election for the office was taking place is a fact question depending on all the surrounding circumstances. Thepublioity given to write-in campaigns, the relative number of votes cast for the office, public comment concerning the legal question of whether the office could be filled at the election, are some of the factors which would have a bearing on the question. The initial determination of this fact question is to be madeby the authority which canvasses the election returns, subject to review by the courts. With reference to the loffioe of constable here involved, the initial determination of this fact question Is to be madeby the Commissioners Court of TomGreen County. If it finds in the affirmative on the question, it should canvass the votes and declare the results and the County Judge should issue a certificate of election to the person receiving aplurality of the votes. If it finds in the negative, it should refuse to canvass the votes.

Attorney General's Opinions O-203, 0-7508, V-771, and any other former opinions of this office which maybe. I



### Hon. EddB. Keyes, 

### page 5 (WW-541)

inconsistent with the principles announcedherein are modified to conform to this opinion. SUMMARY Wherenoonewaseleoted to the office of o6nstable in the general eleotlon In 1956 

### for the suoceedlng regular termandthe Incumbent continued in possession of the office. as aholdover offloer) there wasaconstructive vacancy
. Inthe office beginning with January 1, 1957, 

### andthe remainder of the unexpired termwassub- {;;; to being 

### filled at the,general election In

.Wherethe 1958 

### general eleotlon ballot did not list the office of constable or;the printed ballot; the validity of aneleotlon to fill the unexpired termbymeansof write-in votes depended‘onwhether’the voters generally knewor should haveknownthat aneleotlon for the office was taking 

### place. This 1s.a fact question, depending onall the surrounding circumstances, to be determined Initially bythe commissioners courC in deciding whether the votes for the office should be canvassed. Yours very truly, WILLWILSON Attorney General of Texas

MKW:bh APPROVED: OPINIONCOMHITTEB Geo. P. Blaokburn, Chairman MarvinH.Brown;JF’

. ByronFullerton MorganNesbitt Assistant
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REVIEWED

FORTRBATTOw(gyGTRAL BY: W

.V. Geppert ;,’.,

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