WILL WILSON 

ATT‘,Rnrery CRGNERA.. 

Hon. Raymond J. Goodman 

County Attorney 

Webb County 

Laredo, Texas 

Dear Mr. Goodmsn: 

OF TEXAS 

AUSTIN ii. TRXAS 

oo-" 

t& 

MeY 1, 1958 

.eA?L - 

Opinion No. WW-42 e? 

Re: Tenure of appointment to fill 

vacancy in office of Sheriff, 

and related questions. 

Your request for an opinion Is based on the following 

fact8 es set out In gcur letter: 

"At the general election in 1956 the Honorable I. 

J.C. Martin, Sr. was re-elected to the offlce of 

Sher!.ff of Webb County for the term of 4 years expiring on'December 31, 1960; snd on January 1, 1957, 

'duly qualified and assumed such office and continued 

to serve in &aid capacity until his death on December 

19, 1957 * 

"The Commlsslonere Court of Webb County, at lta 

term In Januray, 1958, duly appointed Mr. P.L. Florea; 

a resident citizen and qualified voter of Webb County, as 

Sheriff to fill the existing vacancy in said term of office 

by reason of the death of the late incumbentSheriff 

J.C. Martin, Sr. Whereupon', Mz; Flores lmmedlstely 

qualified for and assumed said office." 

Under these factual cSrcumstance8, you ask the following question, which we have restated slightly for the sake of 

brevity: 

(1) Will the person appointed to fllL the 

vacancy in the term of. office of,Sherlff be.entltled 

to hold ttie offi.ce for the entire unexpired period 

of the 4-year term and unti.l a successor is duly 

qualified, or ,pnly until the next general election 

held next folldwing the date of such appointment? 

. 

(21 If the Commissioners Carrt 18 authorized 

to fill e vacaiicy in the office of Sheriff only:until 

the next..'eneral election, how shell the designation 

of the ti & 16. of the office for the unexpired term be 

printed on the offlclal'ballots for the primary 

election and f& the general election?' Should the 

ballots show t@t the election ls.foti an unexpired 
. . 

Hon. Raymond J. Goodman, page 2 WW-426 

"For Sheriff (unexpired term endi 

~~?'3~;gi~O)" or “For Sheriff (unexpired term 7 "3 

(3) If a qualified person la elected at 8UCh 

"next general election" for the remaining unexpired 

term of office of Sheriff, may such person 80 

elected qualify for and assume SUCh office lnnxedlately 

after issuance of his oertlficate of election for 

said remalnlng unexpired term? If the answer to this 

qu%$tlon 1.8 negative, when may such person qualify for 

and assume the office? 

In answer to your first question it la our opinion 

that the appointment made l.n January, 1958, to fl.11 the vacancy 

jn the office of Sheriff of Webb County will continue only until 

the general election of 1958, aa hereinafter explained. Article 

V, Section 23 of the Constitution, a8 amended in 1954, provide8 

that vacanc!.es !.n the office of Sheriff shell be fflled by the 

Commi88lon%r8 Court "until the next general election." There 

is no material difference between this provi.slon end the statu-, 

tory provision i,nvolved ln Sterrett v. Moruan, 294 S.W. 2d.201 

(Tex. Clv. App. 1956), under which the court held that theappolntment continued untl.1 the next general election occurrl~ng 

after the vacancy. In that case the contention wae made that an 

appoLntment by the Commlsaioner8 Court of Dallas~County to fill 

a vacancy in the office of Judge of County Court of Dallas 

County et Law No. 2, made in September, 1956, would continue for 

the entire erlod of the unexpl.red term extending through December 31, 195 8 and that an election should not be held at the 

general %lecCl,on in 1956'to f1.11 the remainder, of'.the unexpired 

term. The court held that vacancLe8 in that office mat be 

filled aa provided In Article 1970-24, Vernon's Clvfl Statutes, 

whl~ch provided that any vcscancy in that office "shall be ff.lled 

by the Commlssloners Court of Dallas Caanty until the next r%gular election" meant the "next general el.ectlon," which In that 

case WRS the general election to be held on November 6, 1956. 

It should be noted that appoi.ntments for the conatitut_j~.onal offl. of County Judge and for the offl,ce of Juxcoof 

the Peace ar% controlled by Article V, Sectjon 25 of the ConStitutjon, which prOvj.d%S thet vecanciee in these offices ShRll be 

filled by appointment by the Commlsalonere Court 'until the 

next general %leCtiOn for such offices." As pointed out in 

291 S.W. 2d 249 (TRx. CLv.' App. lg56), this 

era meterlally from the vacancy provisions appllcable' to other offices, which do not contain the qualifying 

phrase "for euch officea." Rawll,na v. Drake held that appolntm%nts for th%S% two offices COnthU% untjl the next general 

election for such offlcek whl,ch would be the generai election 

occurring four yeara aft& the electionat which the term in 

which the vacancy occurred had been originally filled; but a8 
Hon. Raymond J. Gocdman, page 3 WW-426 

to other offices, when vacancies occur the offices are filled by 

appointment until the next succeeding general election. 

be noted, further, that e constitutional emendment will b?v?Ed""' 

on at the general election in 1958 to change Section 28 of 

Article V 80 ab to provide that va&anci%e 1.n the office of County 

Judge and JU8tiCee of the P%ece ahall be filled by the Commiaelonere Court 'until the next succeeding General Election." 

H.J.R. 30, Acts of the 55th Leg., R.9. 1957, p. 1640. 

In your second question you ask whether the official 

ballot should show that the election is for the unexpired term. 

Article 13.X of the Election Code requres that the eppllcetion 

of a cahdidete for 0 place on the prlmery,ballot show whether it 

is for a full term or an tinexpitied terti, but the statutas tire* 

ticrlbing the form of the offLcle1 ballot (Artlolee 6.01, 6.05, 

and 13..Og of the'Elbctlon Code) are silent on the"queetlon of 

whether this information should be shown on the ballots. 

We are of the opinion that the iailure of the ballot8 

either at the prlmery election or at the general election her% 

under conaldetiatldn to show that it ie for the unexpired term 

would not lnvelid8te the election, but we think ~lt 1s ~entlrelg~- 

proper for the ballots in both elections to ehow that the eled&n 

ie for the unexpired $&rm. Either derlgnetlon suggest&d lh yarr 

letter would be eatle eotorJr'.' 'In meklng up the bellote'for the 

general election, the Secreter of State usually designates the 

unexpired teti by the words IT unexf)lred,term)"' or "(for the unexpired term)" following the title OS the office. ,,,, 

Conceivably eii electton might be deolared lnvelid if' 

there were C8Iidid8t%8 at the aaine ele@on both fcir an unexpired 

term end for's aucc6eding full term in en offlc%.and the ballots 

were so prepared that the voters Could iiot tell for which teriK 

the c8ndid8t08 were running. This situation cannot occur in the 

1958 elections to fill the unexpired t&m Ln the office of Sheriff, and we are expreaeing'no opinion on what designtitlon would 

be required in such e situation. It would occur only where someone aought election to the brief portion of an unexplr%d term 

between the general electloh and,the commencement of the new 

t%rm filled at the eeme eleatlon, end frbm past experience it 

znn 

ear% unlikely that the eltuetlori Will arise very often if at 

. 

In your third question you ask when the person elected 

&t the next general election mey quellfg for and amume the offide. Under Article XVI, Section 17 of the Constitution, the 

b;ppointed fncumbent will be entitled and in fact will be under 

k-duty, to continue to ptirform the duties of'the orflce until 

hi8 ,suci?bsbor lb dulg qiaallfled. The ilection of a succeadbi- -. 

to the appointed Sh~rlii will not be completed until the result8 
Hon. Raymond J. Goodmn, p8ge 4 WW-426 

of the eleotion have been officially c8nveesed by the Commi8- 

8lonere Court under Article 8.34 of the Election Code, end the 

eucceeeor cennot claim the oifice befbre that time. u mrta 

sei? 

147 Tex. 248,~ 215 S.W. 26 325 (1948). Howevg we are 

opinion that the parson elected will be entltled'to a catlflcete of election es soon as the results ere officially canvassed, end that he may qualify and eeeume.the office immediately 

thereafter. So fer l 8 w% have been able to find, this precise 

point ha8 not been ruled on by the Texas courts but this seems to 

u8 to be the clear meaning of. the constitutional provl8lon8 and la 

the conclusion indicated in 3x Dart0 Sanders, supra. In that 

the person elected et the general election was not entitled to 

ca8e, 

esaume office before the fir& day of January following the election, the date of the commencement of the new term, because he had 

been elected to the new term.end not to the unexpired term. The 

opinion implies that a person elected to en unexpired term would 

be entitled to receive a certificate of election and to es8ume 

the office es soon es the election had been completed. The holdings in Attorney General'8 Opinion8 0-1664, 0-6206, v-685, end 

other prior opltiiona Implying that e person elected to ah unexany 

pired term is not entitled to assume offtce until January 1 following his election ere hereby overrul&dd 

An appointment by the Commissioners Court to 

fill a vacancy in the office of Sheriff continues 

only until the next general election following the 

occurrence of the vacancy. Tex. Conat., Art. V, 

Sec. 23. Where a vacancy occurred Ln December, 1957, 

an election should be held at the gene=1 election 

in 1958 for the remainder of the unexprled term ending 

on December 31, 1960, end candidates for nomination 

to the office may run in the primary election. 

In both a primary election end a general election for an uaexplred term of office, it la proper 

for the ballots to show that the election 18 for the 

unexpired term. 

A peraon'elected to en unexpired term in the 

office of Sheriff is entitled to receive e certiflcete of election end to eaaume the office as soon as 

the results of the election he,ve been officially canvassed by the Comkle'slonera Court under Article 8.34 

of the Election Code. The incumbent contlrples tom perform the duties of the ofilce until his successor is 

duly qualified. 
.: - 

Eon. Raymond J. Goodman, page fj W-426 

Yours very tru1g 

wIz& wrLBoN 

Attorney General of Texas 

By s/Mary K. Wall 

Mary Ki Wall 

AasLstant 

MKl?:nh:wc 

APPROVED: 

OPINION CObWITTEE 

Gee. P. Blackburn, Cheirman 

J. C. Davis, Jr. 

C. K. Richards 

L. P. Lollar 

RlWIBWEDFORTHBATTCRNRYGENXiRAL 

By: W. V. Geppert