When does a newly elected Texas sheriff take office if they are replacing someone the Commissioners Court appointed to fill a vacancy?

TX AG Opinion GA-0263: Sheriff Successor Takes Office

Plain-English summary

The Williamson County Attorney asked when a person elected sheriff at the November 2004 general election would take office, given that the sitting sheriff at the time was not an elected incumbent but someone the Commissioners Court had appointed after the elected sheriff resigned earlier that year. The question was whether the winner would take over immediately upon being certified as elected, or whether the appointed sheriff would remain in office through the end of the year.

The opinion concluded the newly elected sheriff takes office on January 1, 2005, the same start date as any regular four-year term, and the appointed incumbent stays in office until then. It relied on the Texas Supreme Court's 1948 decision in Ex parte Sanders, which addressed the identical situation for a district judgeship: even though a constitutional or statutory provision says an appointee's term runs only "until the next general election," a separate constitutional provision, article XVI, section 17, requires every officer to keep performing their duties until a successor is duly qualified. Reading those two provisions together avoids a gap where no one legally holds the office between election day and the start of the new term.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2004)

The Williamson County Attorney's office and the Williamson County Commissioners Court: The opinion confirmed that the sheriff appointed to fill the January 2004 vacancy would remain in office through December 31, 2004, and that the winner of the November 2, 2004 election would not take over until January 1, 2005.

Texas counties generally facing a similar appointed-sheriff-to-elected-successor transition: The opinion applied the same reading the Texas Supreme Court gave to an analogous district judge vacancy in Ex parte Sanders, treating Local Government Code section 87.041(c)'s "until the next general election" language for a commissioners-court-appointed sheriff the same way the court treated the parallel constitutional language for a gubernatorially appointed district judge.

Anyone elected to a Texas county office as a successor to an appointee filling a vacancy: The opinion reinforced the general rule that a term of office beginning "on, or as soon as possible after, January 1" under Government Code section 601.003 controls, and that the newly elected official has no legal right to assume duties before that date regardless of when the election is certified.

Common questions

Does a sheriff-elect take office as soon as the election results are certified?
No. This 2004 opinion held that a person elected sheriff at a November general election does not assume office until January 1 of the following year, consistent with the regular start date for Texas county officeholders under Government Code section 601.003.

What happens to the sheriff the Commissioners Court appointed to fill the vacancy?
Based on this opinion, the appointed sheriff continues to serve, and continues holding legal authority, all the way through December 31, even though the statute describing the appointment says the appointee holds office "until the next general election," because a separate constitutional holdover provision keeps every officer in place until a successor is duly qualified.

Why doesn't the statute's "until the next general election" language end the appointed sheriff's term on election day?
The opinion explained that reading the phrase literally would leave the sheriff's office vacant for weeks with no one legally empowered to act. Citing Ex parte Sanders, it held that article XVI, section 17 of the Texas Constitution, which keeps officers in place until their successor is duly qualified, must be read together with the appointment statute to preserve the orderly operation of government.

Background and statutory framework

Article V, section 23 of the Texas Constitution provides for an elected county sheriff serving a four-year term, with vacancies filled by the Commissioners Court until the next general election. Government Code section 601.003(a) sets the regular term of an elective county office to begin on January 1 of the year following the general election, and subsection (b) provides that a person elected to a regular term "shall qualify and assume the duties of the office on, or as soon as possible after, January 1" following the election. Local Government Code section 87.041(c) provides that a person the commissioners court appoints to fill a sheriff vacancy "shall hold office until the next general election."

The opinion relied heavily on Ex parte Sanders, a 1948 Texas Supreme Court case involving a nearly identical dispute over a district judgeship: an individual elected at the November 1948 general election tried to take the bench immediately, was found in contempt for disrupting proceedings after the appointed incumbent judge refused to yield, and challenged his contempt confinement by habeas corpus. The court held the relator had no legal right to the judgeship until January 1, 1949, and that reading the constitutional appointee-term language literally, "until the next succeeding general election," would leave the court "at a standstill" for lack of a judge between the election and the new term's start. The court resolved this by reading that provision together with article XVI, section 17 of the Texas Constitution, which requires all officers to continue performing their duties until their successors are duly qualified, so the appointed judge remained in office and the elected successor could not qualify before January 1. The opinion found Local Government Code section 87.041's "until the next general election" language for an appointed sheriff analogous to the constitutional language at issue in Sanders, and applied the same reasoning, also citing earlier attorney general opinions applying the same holdover principle to an appointed justice of the peace and an appointed district judge.

Citations

Statutes:

• TEX. CONST. art. V, § 23
• TEX. GOV'T CODE ANN. § 601.003(a) (Vernon 1994)
• TEX. GOV'T CODE ANN. § 601.003(b)
• TEX. CONST. art. V, § 28
• TEX. CONST. art. XVI, § 17
• TEX. LOC. GOV'T CODE ANN. § 87.041(c) (Vernon 1999)

Cases:

• Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0263
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0263.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 26, 2004

The Honorable Eugene D. Taylor
Williamson County Attorney
Williamson County Courthouse Annex
Second Floor
405 Martin Luther King, Box 7
Georgetown, Texas 78626

Opinion No. GA-0263

Re: Time of taking office of a person elected to the office of sheriff as a successor to an individual who was appointed to fill a vacancy in that office (RQ-0257-GA)

Dear Mr. Taylor:

You ask about the time of taking office of an individual elected to the office of sheriff as a successor to a person appointed to fill a vacancy in that office.[1]

You state that the "elected Williamson County sheriff resigned" in January 2004 and that his position was subsequently filled "by appointment of [the] Commissioners Court." Request Letter, supra note 1, at 1. The appointee is not a candidate at the November 2004 general election; rather, another person is running unopposed for the position of sheriff for the four-year term beginning on January 1, 2005. See id. You ask whether the individual elected on November 2 assumes office immediately upon his certification as the winner of the election, or whether the incumbent appointed sheriff continues in office through December 31, 2004. Id.

The answer to your inquiry is well established in Texas law and jurisprudence. Article V, section 23 of the Texas Constitution provides that "[t]here shall be elected by the qualified voters of each county a Sheriff, who shall hold his office for the term of four years, whose duties, qualifications, perquisites, and fees of office, shall be prescribed by the Legislature, and vacancies in whose office shall be filled by the Commissioners Court until the next general election." TEX. CONST. art. V, § 23. Section 601.003(a) of the Government Code declares that "[t]he regular term of an elective state, district, county, or precinct office begins on January 1 of the year following the general election for state and county officers." TEX. GOV'T CODE ANN. § 601.003(a) (Vernon 1994). Likewise, section 601.003(b) states that "[a] person elected to a regular term of office shall qualify and assume the duties of the office on, or as soon as possible after, January 1 of the year following the person's election." Id. § 601.003(b). Thus, under the plain language of the Texas Constitution and statutes, an individual elected at a general election held in an even-numbered year does not assume office until January 1 of the following year.

In Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948), the Texas Supreme Court adjudicated a dispute similar to the situation here, between a newly elected district judge and the person appointed to fill a vacancy in that office. The individual elected at the November 2, 1948 general election (the "relator") went to the courtroom on November 9, 1948, disrupted the proceedings, and asserted his right to assume the office of district judge. Id. at 326. The incumbent appointed judge demanded that the relator "vacate the bench," but he refused to do so. Id. The incumbent judge then held the usurper's act to be contempt of court and ordered him confined to jail for three days. The relator subsequently filed, in the Supreme Court of Texas, an original habeas corpus petition against the sheriff. Id. at 325-26.

The court held that the relator "had neither legal right nor color of legal right to the judgeship on November 9." Id. at 326. "[T]he term of office he was seeking did not and could not begin until January 1, 1949. That is what he asked for and that is what he got . . . . Any other conclusion would make the beginning of a term of office depend on the will of the electee rather than the will of the electors as the latter has been unequivocally expressed . . . ." Id.

After holding that the relator's term could not commence until January 1, 1949, the court addressed his claim that the appointed judge's term expired on November 2, 1948, the date of the general election. Confusion apparently had arisen because article V, section 28 of the Texas Constitution provided that vacancies in the office of district judge "shall be filled by the Governor until the next succeeding general election." Id. The court then declared:

If that language had to be given the cold-letter interpretation that relator urges, the 37th District Court would be at a standstill from November 2, 1948, to January 1, 1949, for want of a judge to man it. That the Constitution of this state does not intend any such result becomes quite manifest by reference to Art. XVI, Sec. 17 . . . which directs that "All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." Under Art. V, Sec. 28, supra, [the incumbent judge] became an "officer within this state" by appointment of the Governor upon the death of Judge Terrell, therefore under Art. XVI, Sec. 17, he continues in office until his successor "shall be duly qualified"; and relator cannot qualify before January 1, 1949, because he has no mandate by election or otherwise to do so.

Id. The court concluded that "[o]nly by construing these two sections of our Constitution together can the orderly process of government be preserved. So that is the construction we give them." Id.

In the situation you pose, subchapter D, section 87 of the Local Government Code uses language analogous to that of article V, section 28 of the Texas Constitution. Section 87.041(a) provides that a commissioners court may fill a vacancy in the office of sheriff. Subsection (c) declares that "[t]he person appointed by the commissioners court to fill the vacancy shall hold office until the next general election." TEX. LOC. GOV'T CODE ANN. § 87.041(c) (Vernon 1999). This statute must, like the constitutional provision at issue in Sanders, be read in conjunction with article XVI, section 17 of the Texas Constitution in order to preserve "the orderly process of government."

A number of attorney general opinions subsequent to Sanders have recognized this principle. In Attorney General Opinion M-742, this office said that a person appointed to fill the office of justice of the peace continues to hold his office between the date of the general election and January 1 of the following year. See Tex. Att'y Gen. Op. No. M-742 (1970) at 7. Likewise, in Attorney General Opinion MW-521, the attorney general concluded that an appointee to the office of district judge held office "until his successor 'has been duly elected and qualified . . . which will be on the first day of January following [his] election, or as soon thereafter as possible.'" Tex. Att'y Gen. Op. No. MW-521 (1982) at 3; see also Tex. Att'y Gen. Op. No. JM-579 (1986) at 3 (person elected to term as justice of the peace shall qualify and assume duties of office on the January 1 following his election or as soon thereafter as possible).

We conclude therefore that the person who is elected sheriff of Williamson County at the November 2, 2004 general election is entitled to assume office on January 1, 2005. The incumbent sheriff, previously appointed by the Commissioners Court, is entitled to remain in office until that date.

SUMMARY

The person elected sheriff of Williamson County at the November 2, 2004 general election is entitled to assume office on January 1, 2005. The incumbent sheriff who was previously appointed by the Commissioners Court is entitled to remain in office until that date.

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Eugene D. Taylor, Williamson County Attorney, to Honorable Greg Abbott, Texas Attorney General (Aug. 5, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].