TEEATTORNEYGENERAL 

OF TEXAS 

FVILI. WILSON 

A’CFORNEY OENERAL 

Hon. Edd B. Keyes 

County Attorney 

Tom Qreen 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. 

You have requested an opinion on the existence of 

a vacancy 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: 

“A man was elected to the office of constable in the general election of 1954. He did 

not run for office nor was he elected at the 

general election in 1956. He has continued to 

ho,ld this office, receiving pay until the general election on November 4, 1958, at which time 

there was a write-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 a person 

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 

a vacancy on January 1, 1957, when the incumbent 
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Hon. Edd B. Keyes, page 2 (WW-541) 

failed to qualify, and a8 a result there was a 

vacancy. Contrary to that thought is, the lncumbent holds over until a person is elected or 

appointed; as a result, no vacancy has existed 

until it was known that the incumbent has failed 

to meet the requirements. As a result, 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 whom they 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 a term 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 

a valid election, the person who received a plurality of the 

votes is entitled to the office for the remainder of the unexpired term. On the 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 who was elected in 1954 was entitled 

to hold over into the new term, In accordance with Article XVI, 

Section 17 of the Constitution and Article 18 of the Revised 

Civil Statutes, until a successor qualified. See cases cited in 

34 Tex.Jur., Public Officers, 8 31. We do not believe the incumbent’s failure to qualify for the new term is material. A 

hold-over officer is not required to qualify for the new term 

In order to continue to perform the duties of the office. State 

v. Jordan, 228 S.W.28 921 (Te~.Clv.App. 1930, error dism;)-r'^‘lfhe had attempted to qualify for the new term by taking a new 

oath and giving a new bond, he would'not have acquired any further right to the office than as a hold-over, since he had been 

neither elected nor appointed to the new term. But the fact that 
Hon. Edd B’, Keyes, page 3 (WW-541) 

he was holdiruz over did not orevent there beinn a vacancv in 

the.sense thai the office wai subject to being-filled by”appointment. State v. Cocke, 54 Tex. 482 (1881); Maddox v. York, 

54 S.W. 24 (Tex.Civ.App. 1899, affirmed 93 Tex. 275 55 S W 

;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; Tom v. Klepper, supra. Regardless of whether an 

appointment was made, the remaining portion of the unexpired 

term was subject to being filled by election at the general 

election in 1958. 

We come then’to.the question of whether there. was 

a valid election of a successor at the 1958 general election. 

If there was a valid 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 a valid election, the hold-over incumbent continues 

in office as a hold-over until a successor has qualified, but 

the commissioners court may appoint someone to fill the vacancy 

until the general election in 1960. 

The validity of the election depends on whether 

the voters aenerallv knew or should have known that an election 

for the office wastakIng place. Cunningham v. Queen, 96 S.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, a valid 

election could have been held by means of write-in votes even 

thouah no candidate had auallfled to have his name orinted on 

the ballot and thouah only a small fraction of the voters wrote 

in the name of a cand .ldate. Sterrett v. Morgan, 294 S.W.2d 201 

1956); Cunningham v. Queen, supra; Att ‘y Cen. Op. 

There is no Texas case de ziding whether there can 

be a-valid eleotion by means of writing in both the title of 

the office and the name of 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 no valid election under the fact6 in that case, but It did not go so far 

as to hold that a valid 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. Edd B. Keyes, page 4 (WW-541) 

In other jurisdictions the cases ares in irreconcilable conflict on the question of whether a valid election 

can be held where the office is not listed on the ballot. For 

our opinion we adopt the principles set out in the following 

cases as representing what we consider 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, 74 N.J.L. 16, 

64 itl. f&4*(&6); Se&d v. F outch, 44 Mich. 89, 6 N.W. 110 

(1880); State,v. Turnbull 212 Mlnn. 382 3 N.W.2d 674 (1942); 

dissentAngie v. Hayes, 146 Ohio St. 681, 76 

N.E.2d 869 (1947). 

On the basis of the foregoing authorities, we are 

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 do these 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 name of 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. On the 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 known that an election for the, office was taking 

place, especially where the office is not regularly filled at 

that election. 

Whether the voters generally knew or should have 

known that an election for the office was taking place is a 

fact question depending on all the surrounding circumstances. 

The publioity 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 made by 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 made by 

the Commissioners Court of Tom Green 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 a plurality 

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 may be 
. I 

Hon. Edd B. Keyes, page 5 (WW-541) 

inconsistent with the principles announced herein are modified to conform to this opinion. 

SUMMARY 

Where no one was eleoted to the office of 

o6nstable in the general eleotlon In 1956 for 

the suoceedlng regular term and the Incumbent 

continued in possession of the office. as a holdover offloer) there was a constructive vacancy . 

In the office beginning with January 1, 1957, 

and the remainder of the unexpired term was sub- 

{;;; to being filled at the,general election In 

. 

Where the 1958 general eleotlon ballot did 

not list the office of constable or; the printed 

ballot; the validity of an eleotlon to fill the 

unexpired term by means of write-in votes depended ‘on whether’the voters generally knew or 

should have known that an eleotlon for the office 

was taking place. This 1s.a fact question, depending on all the surrounding circumstances, to 

be determined Initially by the commissioners courC 

in deciding whether the votes for the office should 

be canvassed. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

MKW:bh 

APPROVED: 

OPINION COMHITTEB 

Geo. P. Blaokburn, Chairman 

Marvin H. Brown; JF’. 

Byron Fullerton 

Morgan Nesbitt 

Assistant 

; 

REVIEWED FOR TRB ATTOw(gy GTRAL 

BY: 

W .V. Geppert ;,’ ., 

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