November 24, 1986 

Honorable Richard G. Moral~zs. Sr. opinion No. m-579 

Webb County Attorney 

1104 Victoria Re: Time at which a newly elected 

Laredo, Texas 78040 justice of the peace takes office, 

when he is elected to a position 

previously filled by appointment 

Dear Mr. Morales: 

You inquire about the adate when the person elected justice of the 

peace in -the November general election should take office. You inform 

us that the incumbent was appointed to fill a vacancy in the office 

and ask whether the newly elected individual will take office on 

January 1, after he is swrn in, or immediately after he is declared 

the winner in the November general election. 

Article 2355. V.T.C.S., provides that the commissioners court 

shall have power to fill vacancies in the office of justice of the 

peace, "and the person chosen shall hold office until the next general 

election." V.T.CrS. art. 2355; see also Tex. Const. art. V, 828. 

Article 17, V.T.C.S., states more specifically when officers elected 

at a general election take office: 

The regular terms of office for all elective 

state, district, county and precinct offices of the 

State of Texas, excepting the offices of Governor, 

Lieutenant Gowmor. State Senator, and State 

Representative, shall begin on the first day of 

January next following the general election at 

which said respective offices are regularly filled, 

and those who we elected to regular terms shall 

qualify and ass,%e the duties of their respective 

offices on the f?rst day of January following their 

canvass of the results of the election at which 

p. 2590 
Eonorable Richard G. Morales, Sr. - Page 2 (JM-579) 

they were elected, and they shall take office as 

soon thereafter as; possible. (Emphasis added). 

V.T.C.S. art. 17. Thus, a person elected at the general election to 

fill an unexpired term takes office as soon as he can qualify after 

the election, while a peruon who is elected to a new term beginning 

January 1 may not qualify or assume the. duties of office until that 

date. See Attorney General Opinions MW-521 (1982); M-742 (1970). - 

The candidate elected to a new term has no right to serve any 

portion of the term which ends December 31. Ex parte Sanders, 215 

S.W.Zd 325 (Tex. 1948); Anierson v. Parsley, 37 S.W.Zd 358 (Tex. Civ. 

APP. - Fort Worth 1931, ;fcc ref'd). The appointed incumbent will in 

such case continue td hold the office from the general election until 

the newly elected justice of the peace qualifies on or after January 

1. His continuance in offLce is required by article XVI, section 17, 

of the Texas Constitution, the "holdover" provision, which states that 

[a]11 officers w:.t.hin this State shall continue to 

perform the dutjes of their offices until their 

successors shall tie duly qualified. 

Tex . Const. art. XVI, 917. 

Attorney General Opinion M-742 (1970) explains the apparent inconsistency between article 17, V.T.C.S., and the constitutional and 

statutory provisions which sipecify that persons appointed to a vacancy 

shall serve until the next general election: 

The primary Ilurpose and intent of those provisions of sect:.on 28 of article V and article 

2355, which specify that persons appointed to 

vacancies in the offices named therein shall serve 

until the next general election, was not to vacate 

the office upon that date but rather to establish 

the policy that the people shall fill the office 

by election at the earliest opportunity. 

Attorney General Opinion M-.742 at 4. (1970). 

The answer to your specific question depends on whether the 

present term of office ends on December 31 following the November 

general election or cont:.nues into the next year. See generally 

Attorney General Opinion Jlt-558 (1986). If the present term of office 

ends on December 31, the newly elected justice of the peace should 

qualify and assume the duties of his office on January 1 or as soon 

thereafter as possible. IE the present term of office continues into 

the next year, then the person who wins the general election has been 

elected to the unexpired term of the office, and he may qualify and 

p. 2591 
Honorable Richard G. Moralt,s, Sr. - Page 3 (JM-579) 

assume the duties of office "immediately upon receiving a certificate 

of election. . . .II V.T.C.S. art. 17. See Elec. Code §§67.001-67.006 

(canvassing of local election returns);- 967.016 (issuing certificate 

of election). 

SUMMARY 

Article 17. T'.T.C.S., provides that a person 

elected to the ,mexpired term of the office of 

justice of the ptzace may qualify insnediately upon 

receiving the cer,tificate of office and shall take 

office as soon thereafter as possible. A person 

elected to a new term of justice of the peace 

shall qualify an'1 assume the duties of office on 

the January 1 following his election or as soon 

thereafter as por,sible. 

JIM MATTOX 

Attorney General of Texas 

JACK BIGHTOWER 

First Assist&t Attorney Gt,neral 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Conrmittec 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2592