GERALD C. MANN             ‘?)LCJMTlX
                                  11.




    Honorable Robert F. Peden, Jr.
    County Attorney
    Matagorda County
    Bay City, Texas
    Dear Sir:                  Opinion No. O-3047
                               Re: Power of Commissioners Court
                                    to declare vacancy in office
                                    of Justice of the Peace.
              You have requested the opinion of this Department
    upon the question whether the Commissioners' Court of
    Matagorda County can declare a vacancy to exist in the of-
    fice of Justice of Peace of Precinct No. 5 of that county
    and appoint a successor, under the following state of facts:
              "The Justice of the Peace, Precinct No. 5,
        Matagorda County became sick about the middle of
        last year. The Commissioners Court appointed a
        man to fill the vacancy. The man who was sick
        was returned to office by the voters in the Nov-
        ember election, but has never qualified. The man
        appointed by the court last year is still carrg-
        ing out the duties of the office. The man who is
        sick expects some day to be able to hold the of-
        fice. The court wishes to know if it can now de-
        clare a vacancy of the office and appoint his
        successor."
              The rule with respect to the authority of the Com-
    missioners' Court in such matters fs correctly stated In the
    case of Ehlinger v. Rankin (C.C.A.) 29 S.W. 241, as follows:
               "The Commissioners Courts have not the author-
         ity to judicially determine a right of one to an of-
         fice, or to remove a legally qualified officer from
         his office, for the jurisdiction in this matter
         lies within the exclusive cognizance of the DLstrlct
         Court; but if, as a fact, a vacancy does exist, then
         it becomes the duty of the Commissioners' Court to
         fill it."
                The question then, arising from your Inquiry, is
     this:   Under the facts outlined by you, has the person elected
Honorable Robert F. Peden, Jr., page 2         O-3047


to the office oflJustice of the Peace of Precinct No. 5 of
Matagorda County as a matter of law forfeited his right to
the office to which he was elected, so that, as a matter of
law, a vacancy therein exists which the Commissioners' Court
may recognize and fill by appointment.

        . Revised Civil Statutes, 1925, Article 17, provides:
          "After each general election those who are
    elected to the various county and precinct offices
    shall qualify by taking the official oath and en-
    tering upon and assuming the duties of their re-
    spective offices on the first day of January fol-
    lowing the last general election, or as soon there-
    after as possible. . . . ."
         "Statutes fixing the time for qualifying are
   generally regarded as directory only; and as a
   rule a failure to qualify within the time pre-
   scribed does not create a vacancy in the office
   unless the statute so prescribes. But the Supreme
   Court has said that this rule was made to cover
   cases where the officer cannot, for some good
   reason beyond his own control, qualify within the
   time prescribed, and it will not be extended to cases
   where there is a neglect or refusal to qualify;
   and where the officer seeks an extension of the
   prescribed time he must show 8n extraordinary rea-
   son therefor." 34 Texas Juris., page 361; Flatau
   v. State, 56 Tex. 93; 22 R.C.L., page 451; 46
   Corpus Juris, ppa 962-963.
          Under the facts as detailed in your letter, it ap-
pears that the person elected to the office of Justice of
the Peace was incapacitated by sickness prior to and at the
time of this election, and his incapacity has continued down
to the present time; but he expects to regain his health and
be able to hold the office. It thus appears that the failure
of the person elected to the office of Justice of the Peace
to qualify has been occasioned by a good reason beyond his
own control, and not by reason of neglect or refusal on his
part to do so. It would thugsappear that in the circumstances
of this case the failure to qualify does not work a forfei-
ture of the right to the office so as to create a vacancy
therein which the Commissioners' Court of Matagorda County
is authorized to recognize and fill by appointment.
          Confirmation of this view would appear to be found
in Article 5972, of the Revised Civil Statutes. This article
provides in part as follows:
Honorable Robert F. Peden, Jr., page 3         O-3047


            I!
           . * . An officer may be found to be incom-
    petent when, by reason of some serious physical or
    mental defect, not existing at the time of his
    election, he has become unfit or unable to dis-
    charge promptly and properly the duties of his of-
    fice."
          This latter article, of course, has reference to,
and is found in the chapter on, removal of officers from
their offices. Such removal, of course, presupposes a
qualification for the office and an entering upon the
discharge of the duties thereof. However, the article is
significant as reflecting a general public policy in respect
to officers incapacitated by illness. By its plain lan-
guage, this article allows a removal of an officer, where
he becomes unfit or unable to discharge promptly and properly
the duties of his office by reason of serious physical or
mental defects, only in the instance where the serious
physical or mental defect occasioning such unfitness ~8s
not in existence at the time of his election to the office.
By analogy, it would seem that if an officer is not to be
removed, after qualification for and entering upon the dis-
charge of the duties of his office, by reason of some physi-
cal or mental defect rendering him incompetent to discharge
the duties of the office, which serious mental or physical
defect existed at the time of his election, a person elected
to the office of Justice of the Peace who is prevented from
qualifying for that office by reason of some serious physi-
cal or mental defect which was in existence at the time of
the election should not forfeit his right to take and hold
that office by reason of the fact that such serious physical
defec.tprevents his prompt qualification therefor.
          You are advised that it is our opinion that the
Commissioners' Court of Matagorda County, under the circum-
s,tancesin the case presented, cannot declare a vacancy to
exist in the office of Justice of the Peace, Precinct No. 5,
Matagorda County, Texas, and appoint a person to fill such
office.
                                 Yours very truly
                              ATTORNEY GENERAL OF TEXAS
RWF:db:wc
                                 By s/ R. W. Fairchild
APPROVED APRIL 18, 19'41               R. W. Fairchild
s/Grover Sellers                       Assistant
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman
