                        November 24,   1986




Honorable Richard G. Moral~zs.Sr.      opinion No. m-579
Webb County Attorney
1104 Victoria                          Re: Time at which a newly elected
Laredo, Texas   78040                  justice of the peace takes office,
                                       when he is elected to a position
                                       previously filled by appointment

Dear Mr. Morales:

     You inquire about the adatewhen the person 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 immediately after he is declared
the winner in the November general election.

     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 shall hold office until the next general
election." V.T.CrS. art. 2355;    see also Tex. Const. art. V, 828.
Article 17, V.T.C.S., states more specifically when 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 offices are 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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Eonorable Richard G. Morales, Sr. - Page 2     (JM-579)




          they were elected, and they shall take office as
          soon thereafter as;possible. (Emphasis added).

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. -See Attorney General Opinions MW-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 incumbent will in
such case continue td hold the office from the general election until
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 the Texas Constitution, the "holdover" provision, which states that

          [a]11 officers w:.t.hin
                                this State shall continue to
          perform the dutjes of their offices until their
          successors shall tieduly qualified.

Tex . Const. art. XVI, 917.

     Attorney General Opinion M-742 (1970) explains the apparent in-
consistency between article 17, V.T.C.S., and the constitutional and
statutory provisions which sipecifythat persons appointed to a vacancy
shall serve until the next general election:

              The primary Ilurpose and intent of those pro-
          visions of sect:.on 28 of article V and article
          2355,   which specify that persons appointed to
          vacancies in the offices named therein shall serve
          until the next general election, was not to vacate
          the office upon that date but rather to establish
          the policy that the people shall fill the office
          by election at the earliest opportunity.

Attorney General Opinion M-.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:.nues into the next year.     See generally
Attorney General Opinion Jlt-558(1986). If the present 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
thereafter as possible. IE the present term of office continues into
the next year, then the person who wins the general election has been
elected to the unexpired term of the office, and he may qualify and




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




assume the duties of office "immediately upon receiving a certificate
of election. . . .II V.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 ptzacemay qualify insnediatelyupon
          receiving the cer,tificateof 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'1 assume the duties of office on
          the January 1 following his election or as soon
          thereafter as por,sible.




                                          JIM     MATTOX
                                          Attorney General of Texas

JACK BIGHTOWER
First Assist&t   Attorney Gt,neral

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Conrmittec

Prepared by Susan L. Garrison
Assistant Attorney General




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