November 24, 1986

HonorableRichard G. Moral~zs.Sr. opinionNo. m-579 Webb CountyAttorney 1104Victoria Re: Time atwhich a newly elected Laredo, Texas 78040 justice of the peace takes office, when he is elected to a position previously filledby appointment
Dear Mr. Morales: You inquire about the adate when theperson elected justice of the peace in -theNovember 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 immediatelyafter he is declared thewinner in theNovember generalelection. 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 shallhold office until thenext general election." V.T.CrS. art. 2355; see also Tex. Const. art. V, 828. Article 17, V.T.C.S., statesmore specificallywhen 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 officesare 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



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they were elected, and they shall take office as soon thereafteras; possible. (Emphasisadded). 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. SeeAttorney General OpinionsMW-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 incumbentwill in such case continue td hold the office from the general electionuntil 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 theTexas Constitution, the "holdover"provision,which states that

[a]11officersw:.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 statutoryprovisionswhich sipecify thatpersons appointed to a vacancy shall serveuntil thenext general election:

The primary Ilurposeand intent of those provisions of sect:.on28 of article V and article 2355, which specify that persons appointed to vacancies in the officesnamed therein shall serve until thenext general election,was not to vacate the office upon thatdate but rather to establish the policy that the people shall fill the office by electionat the earliest opportunity. Attorney General OpinionM-.742at 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:.nuesinto the next year. See generally Attorney General Opinion Jlt-558(1986). If thepresent 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 thereafteras possible. IE the present term of office continues into the next year, then the person who wins the general electionhas been elected to the unexpired term of the office, and he may qualify and

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

assume the duties of office "immediatelyupon receiving a certificate of election.
. . .IIV.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'1assume the duties of office on the January 1 following his election or as soon thereafteras por,sible.

JIM MATTOX Attorney General of Texas JACK BIGHTOWER First Assist&t Attorney Gt,neral
MARY KELLER ExecutiveAssistantAttorney General RICK GILPIN Chairman,Opinion Conrmittec Preparedby SusanL. Garrison AssistantAttorney General

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