WILL WILSON

ATT‘,Rnrery CRGNERA..

Hon. Raymond J. Goodman CountyAttorney Webb County Laredo, Texas
Dear Mr. Goodmsn: OF TEXAS

AUSTIN ii.

TRXAS oo-"

t& MeY 1, 1958 .eA?L -

e? Opinion No. WW-42
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!.ffofWebb County for the term of 4 years expiring on'December **31, 1960;**  snd on January 1, 1957, 'dulyqualified and assumed such office and continued to serve in &aid capacityuntil his death onDecember 19, 1957* "TheCommlsslonereCourt ofWebb County, at lta term In Januray, 1958, duly appointedMr. P.L.Florea; a resident citizen and qualified voter ofWebb 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,Sherlffbe.entltled to hold ttieoffi.ce for the entireunexpired period of the 4-year term and unti.la successor is duly qualified, or ,pnlyuntil the next general election held next folldwing the date of such appointment?

. (21 If the CommissionersCarrt 18 authorized to fill e vacaiicyin 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'ballotsfor 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

"ForSheriff (unexpiredterm endi ~~?'3~;gi~O)" or “For Sheriff (unexpiredterm "3 7 (3) If a qualified person la elected at 8UCh "nextgeneral election" for the remainingunexpired term of office of Sheriff, may such person 80 electedqualify for and assume SUCh office lnnxedlately after issuance of his oertlficate of election for said remalnlngunexpired 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 appointmentmade l.n January, 1958, to fl.11 the vacancy jn the office of Sheriff ofWebb County will continue onlyuntil 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 shellbe fflled by the Commi88lon%r8 Court "untilthe next general election." There isno material differencebetween this provi.slon end the **statu-,** tory provision i,nvolved lnSterrett v. Moruan, 294 S.W. 2d.201 (Tex. Clv.App. 1956), under which the court held that theappolntment continueduntl.1the next general election occurrl~ng after the vacancy. In that case the contentionwae 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 inSeptember, 1956, would continue for the entire erlod of the unexpl.redterm extending through December 31, 1958 and that an election shouldnot be held at the general %lecCl,onin 1956'to f1.11 the remainder,

of'.the unexpired term. The court held that vacancLe8 in that officemat be filled aa provided InArticle 1970-24,Vernon's Clvfl Statutes, whl~chprovided that any vcscancyin that office "shallbe ff.lled by the Commlssloners Court of Dallas Caantyuntil the next r%gular election"meant the "nextgeneral el.ectlon," which In that caseWRS the general election to be held on November 6, 1956.

It should be noted that appoi.ntmentsfor 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 ShRllbe filled by appointmentby the CommlsalonereCourt 'untilthe 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 provisionsappllcable'to other offices,which do not contain the qualifying phrase "foreuch 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 a8Hon. Raymond J. Gocdman, page 3 WW-426

to other offices,when vacancies occur the offices are filledby appointmentuntil the next succeedinggeneral election. be noted, further, that e constitutionalemendmentwill b?v?Ed""' on at the general election in 1958 to change Section 28 of ArticleV **80** ab to provide that va&anci%e 1.n the office of County Judge and JU8tiCee of the P%ece ahallbe 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 secondquestion 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 showwhether it is for a full term or an tinexpitied terti, but the statutas tire* ticrlbingthe form of the offLcle1 ballot (Artlolee6.01, 6.05, and 13..Ogof the'Elbctlon Code) are silent on the"queetlon of whether this information shouldbe 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~lt1s~entlrelg~- proper for the ballots inboth elections to ehow that the **eled&n** ie for the unexpired $&rm. Either derlgnetlon suggest&d lh yarr letterwould be eatle eotorJr'.' 'Inmeklngup the bellote'for the general election, the Secreter **of State**  **usually designates**  the unexpired teti by the words IT unexf)lred,term)"' or "(forthe unexpired term)" following the title OS the office. ,,,,

Conceivably eiielecttonmight be deolared lnvelid if' there were C8Iidid8t%8 at the aaine

ele@on both fciran unexpired term end for's aucc6eding full term in en offlc%.and the ballots were so prepared that the voters Could iiottell forwhich teriK the c8ndid8t08were running. This situation cannot occur in the 1958 elections to fill theunexpired t&m Ln the office of Sheriff,and we are expreaeing'no opinion onwhat designtitlon would be required in such e situation. Itwould occur onlywhere someone aought election to the brief portion of anunexplr%d term between the general electlohand,the commencement of the new t%rm filled at the eeme eleatlon, end frbm past experience it

znnear%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 ArticleXVI, Section 17 of the Constitution, the b;ppointedfncumbentwill be entitled and in factwill be under k-duty, to continue to ptirformthe duties of'the orflceuntil hi8**,suci?bsbor** lb dulg qiaallfled. The ilection of a succeadbi- -. to the appointed Sh~rliiwill not be completeduntil the result8Hon. Raymond J. Goodmn, p8ge 4 WW-426

of the eleotion havebeen officially c8nveesedby the Commi8- 8lonereCourt under Article 8.34 of the Election Code, end the eucceeeorcennot 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 electedwill be entltled'toa catlflcete of electiones soon as the results ere officiallycanvassed, end that he may qualify and eeeume.the office immediately thereafter. So fer l8 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 constitutionalprovl8lon8 and la the conclusion indicated in 3x Dart0 Sanders, supra. In that the person electedet the general electionwas not entitled toca8e,

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 enunexpired termwould be entitled to receive a certificate of electionand to es8ume the office es soon es the electionhad been completed. The holdings in AttorneyGeneral'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 offtceuntil January 1 following his electionere hereby overrul&dd

An appointmentby 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 shouldbe 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 officemay 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 tomperform 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