Can a justice of the peace elected to finish a constable's unexpired term wait until January 1 to take the new office?

Texas AG Opinion JM-589: Constable Unexpired Term

Plain-English summary

JM-589 concluded that a justice of the peace elected to finish a constable's unexpired term could not wait until January 1 to take the new office. After the commissioners court canvassed the election and the winner received a certificate of election, he had to qualify and assume the constable's duties as soon as possible. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

The opinion distinguished an election to a regular term from an election to an unexpired term. Under the statute discussed in 1986, regular county and precinct terms began on January 1 after the general election, while a person elected to an unexpired term was entitled to qualify immediately after receiving the election certificate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

For the Harris County official in the request, qualification meant filing the required bond and taking the oath. The AG also said that entering the new office would divest him of the justice-of-the-peace office because he could not lawfully hold both at the same time. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

The person temporarily serving as constable remained in office until the elected successor duly qualified. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

Currency note

This opinion was issued in 1986. 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.

Common questions

Could the winner wait until January 1 to become constable?

No. JM-589 said a person elected to serve the remainder of an unexpired constable term had to qualify and assume office immediately, rather than use the January start date for a regular term. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

What did the opinion mean by qualifying for office?

For this request, the opinion described qualification as filing the bond and taking the oath, followed by assuming the new duties as soon as possible. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

Why did the January 1 rule not control?

The statute quoted in JM-589 used January 1 for officials elected to regular terms. It separately directed officials elected to unexpired terms to qualify upon receiving their election certificates after the official canvass. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

What happened to the justice-of-the-peace office when the winner took the constable office?

The opinion said an officer could leave one office before a successor qualified by qualifying for and entering another office that he could not lawfully hold at the same time. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

When did the temporary constable's service end?

JM-589 said the person then serving as constable remained in office until the elected successor duly qualified. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

Background and statutory framework

The request arose after a Harris County justice of the peace won a November 1986 election to finish a deceased constable's term. The commissioners court canvassed the vote and issued the election certificate, but the winner wanted to complete his justice-of-the-peace term and wait until January 1, 1987, to become constable. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

JM-589 relied on V.T.C.S. article 17, which separated regular terms from unexpired terms. It also cited the Texas Constitution's holdover provision for the rule that the incumbent continued performing the office's duties until a successor qualified. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf

Statutes and constitutional provisions:

• V.T.C.S. art. 17
• Election Code § 67.016
• Tex. Const. art. XVI, § 17

Cases:

• Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948)
• Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935)
• State ex rel. Peden v. Valentine, 198 S.W. 1006 (Tex. Civ. App. 1917, writ ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0589
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0589.pdf
• Date reference: https://www.casemine.com/judgement/us/59148cfbadd7b0493453b725

Original opinion text

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

December 23, 1986

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-589

Re: Time of assumption of office of individual who is elected to fill unexpired term as constable

Dear Mr. Driscoll:

You have provided us with the following information. A particular justice of the peace in Harris County was elected to a four-year term in 1982. He was not renominated by the voters in his party's primary held in May of 1986. In July of 1986, the constable of that precinct died, and his widow was appointed to fill the vacancy in office created by her husband's death until a successor could be elected at the next general election and assume office. The aforementioned justice of the peace was his party's nominee in the general election in November to fill the deceased constable's unexpired term; he won the general election. On November 6, the Harris County commissioners canvassed the general election votes pursuant to section 67.016 of the Election Code and notified the justice of the peace by certificate of election of his victory in the constable's race. You indicate that the justice would like to complete his term of office as justice of the peace and take office as constable on January 1, 1987. Accordingly, you ask whether the justice of the peace must file his bond, take his oath, and immediately assume office or may wait until January 1 to assume his new duties. We conclude that he must qualify for office immediately.

Article 17, V.T.C.S., provides for the commencement of terms of office and sets forth the following:

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 Governor, 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 are elected to regular terms shall qualify and assume the duties of their respective offices on the first day of January following their election, or as soon thereafter as possible. Persons elected to unexpired terms in the various state, district, county and precinct offices shall be entitled to qualify and assume the duties of their respective offices immediately upon receiving a certificate of election, which certificate shall be issued immediately following the official canvass of the results of the election at which they were elected, and they shall take office as soon thereafter as possible. (Emphasis added).

It is clear from even a cursory reading of article 17 that the newly-elected constable should qualify (by filing his bond and taking his oath) as quickly as possible. As this office noted in Attorney General Opinion MW-521 (1982),

[A]rticle 17 clearly provides that only those persons elected to unexpired terms qualify for and assume the duties of their offices immediately upon receiving a certificate of election. Those elected to regular terms qualify for office "on the first day of January following their election, or as soon thereafter as possible."

See, e.g., Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948); Attorney General Opinions M-742, M-627 (1970); O-4994 (1942). We note that article XVI, section 17, of the Texas Constitution requires that the person presently serving as constable shall remain in office and perform the duties of office until a successor is duly qualified. We further note that an officer, in this instance a justice of the peace, may divest himself of an office before his successor has qualified by himself qualifying for and entering upon the duties of another office which he cannot lawfully hold at the same time. Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935); State ex rel. Peden v. Valentine, 198 S.W. 1006 (Tex. Civ. App. 1917, writ ref'd); Attorney General Opinion M-627 (1970).

Accordingly, we conclude that a justice of the peace who has been elected to serve out the unexpired term of a constable should qualify for and assume office immediately.

SUMMARY

A person who is elected to serve out the unexpired term of a constable should qualify for and assume office immediately.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General