                    THE      ATTORNEY    GENEMAL
                                OF TEXAS

   W’ILL
ATl-OR-
           WILSON
              GENERAL
                                  June 25,     1962

 Honorable’ John Lawhon                  Opinion    No. WW-1359
 County Attorney
 Denton County Courthouse                Re:    Whether a Justice       of the Peace,
 Denton, Texas                                  Precinct
                                                . .    --.  1,  Place
                                                                .     . 1,  vacated
                                                nis orrlce     wnen ne announcea
                                                his candidacy      for Justice    of
                                                the Peace, Precinct        1, Place
                                                2; appointment       to unexpired
                                                term; being the Democratic          nomi-
                                                nee for both Place 1 and Place
                                                2 at the same time on the Gener-
                                                al Election     ballot;    and holding
 Dear Mr. Dawhon:                               both offices,      If elected    to both,

           Your letter    reads   in part    as follows:

                   “All of the City of Denton lies       In
           Justice     of the Peace Precinct     No. One.   The
           city contains      more than 8,000 Inhabitants,
           and therefore,       Justice   of the Peace Precinct
           No. One has two Justices         of the Peace, deslg-
           nated Place One and Plac,e Two In accordance
           with provisions       of Article   2375 of the Revls-
           ed Civil     Statutes’ of Texas.

                   “The office     of Justice    of the Peace is a
           civil    office     of emolument and operates       in this
           county on a fee basis.           Jim George was the duly
           elected     and acting    Justice    of the Peace,     Pre-
           cinct    No. One, Place One, and elected          for a
           four-year       term in November, 1960.       W. A. Riggs
           was the duly elected        and acting    Justice    of the
           Peace, Precinct        No. One, Place Two, and was
           elected     for a four-year      term In November, 1958.

                  “On or before    the 5th day of February,       1962,
           Jim George announced his candidacy          and filed   an
           application     with the County Democratic      Chairman
           for a place on the ballot       as Justice    of the Peace.
           Precinct     No. One, Place One and Place Two.         On or
           before    the 5th day of February,      1962,  W. A. Riggs
           announced his candidacy       and filed   an application
           with the County Democratic       Chairman for a place
           on the ballot      as Justice  of the Peace, Precinct
           No. One, Place Two.
Hon. John Lawhon, Page              2 @W-13%)



                           the County Democratic Executive
          Commitie;!    placed on the primary ballot   the
          following:

          For Justice        of    the    Peace,      Precinct   One,
          Place One--
                              JIM GEORGE

          For Justice        of    the    Peace,      Precinct   One,
          Place Two--
                              JIM GEORGE
                              W.A. RIGGS

                 “The County Democratic    Executive   Com-
         mittee has certified     to the County Clerk that
         Jim George won nomination       and is the nominee
         for Justice     of the Peace, Precinct     No. One,
         Place One; and further      that he received    a
         majority    of the votes cast In the election
         for Justice     of the Peace, Precinct     No. One,
         Place Two, and la also the Nominee for said
         office.     It now appears that the name of
         Jim George will appear upon the November
         ballot    as the nominee for Place One and Place
          TWO."

         After     stating        the    above     facts,   you have asked   the follow-
ing   questions:

               “1. When Jim George became an announced
         candidate for Justice  of the Peace, Precinct
         No. One, Place Two, did he then and there va-
         cate his office of Place One?

                “2.   If your answer to Question   No. 1
         la that Jim George did vacate the office       of
         Place One when he became a candidate      for
         Place Two, can he now be appointed      to the
         office    of Place One to fill out the unexpired
         portion    of the term of said office.

               “3. SFnce the County Democratic Execu-
         tive Committee has certified     the name of Jim
         George as the nominee for both Place One and
         Place Two, can the name of Jim George appear
         upon the ballot    for the Qeneral Election  In
         November, 1962, as the nominee for said two
         separate  offices?
.

    .’       .




         Hon. John Iawhon,      Page   3   (Ww-1359)



                  "4.   If your answer to Question   No. 3 is
                  that the name of Jim George can be placed
                  upon the November General Election    ballot
                  as a candidate  for both Place One and Place
                  Two, can he, in the event that he is elected
                  to both offfceq  he sworn, commissioned,     and
                  hold both said offices  at the same time?"
                                                  '.
                  In response    to a telephone   inquiry   from this      office,  you
         have furnished    us with the following      information:        That Judge
         Jim George filed     his application   for a place on the         ballot  as
         a candidate    for Justice   of the Peace, Precinct       No.    1, Place 1,
         on January 18, 1962, and that he filed          for Place 2      on February
         1, 1962.

                  Section   18, Articie     V, Texas   Constitution,     reads   In part
         as follows:

                        "Each organized    county in the State . . .
                 shall be divided      from time to time, for the
                 convenience      of the people,    Into precincts,    not
                 less than four and not more than eight.            Dlvl-
                 aions shall be made by the Commisalonera           Court
                 provided    for by this Constitution.         In each pre-
                 cinct   there shall be elected        one 3ustice  of the
                 Peace and one Constable,        each of whom shall hold
                 his office     for four years and until       his successor
                 shall be elected      and qualified;     provided  that In
                 any precinct      in which there may be a city of
                 8,000 or more inhabitants,         there shall be elected
                 two Justices      of the Peace.       . . ,"

                       This office    held In Attorney       General's     Opinion    No.
         WW-1251 that even though a Justice         Precinct     may contain      within
         its boundaries    a town having a population          in excess    of 8,000
         inhabitants,    it need not have more than one Justice             of the Peace,
         if the Commissioners      Court decides    that It la not needed "for
         the convenience    of the people,"     and cited      Meredith v. Sharp, 256
         S.W.2d 870 (Civ.App.      1953, error ref.     n.r.e.).       All of the City
         of Denton lies    within Justice     of the Peace Precinct         No. One,
         and the City of Denton had a population           of 26,844,     according      to
         the 1960 Federal     Census,   as reported    in the Texas Almanac for
         lg61-1962.    Since It la the will of the Comm‘issioners              Court that
         there be two Justices      of the Peace in Precinct        No. One In Denton
         County, these two places       are designated     Place One and Place Two.

                 Where any precinct office  la of such a nature that two
         or more persons  hold such office,  with the result  that candl-
         dates file  for "Place No. 1," "Place No. 2," etc.,   they will
Hon. John Lawhon,       Page 4 (WW-1359)



be elected   to overlapping     four-year  terms.     The odd numbered
places   are elected  at one election,     and the even numbered
places   are elected  at the election     held two years thereafter.
Section   65, Article XVI, Texas Constitution.          This provision           of
the Texas Constitution      also provides    in part:
                II      . if any of the officers         named here-
         in fihia'lncludes       Justices    of the Peace        shall
         announce their      candicacy     in any Genera r7, Spe-
         cial   or Primary Election,,for        any office       of
         profit    or trust under the laws of this State or
         the United States other than the office               then
         held,   at any time when the unexpired            term of
         the office      then held shall exceed one (1) year,
         such announcement or such candidacy              shall constl-
         tute   an automatic     resignation    of the office        then
         held,   and the vacancy thereby created             shall be
         filled    pursuant to law In the same manner as other
         vacancies     for such office      are filled."

         When Justice     of the Peace Jim George filed           his application
for a place on the ballot          as a candidate     for the office      of Jus-
tice of the Peace, Precinct          No. 1, Place 2, then under the plain
language of Section       65, Article XVI, Texas Constitution,             such
announcement constituted          "an automatic    resignation     of the office
then held,"     to-wit,   the office     of Justice     of ,the Peace, Precinct
1, Place 1.      His announcement came at a time "when the unexpired
term of the office       then held" exceeded       one (1) year.       See Attor-
ney General's      Opinion No. WW-1253.        The vacancy thus created          in
the office    of Justice     of the Peace, Precinct        No. 1, Place 1,
has not been filled.         When the Commlaaloners         Court selects     a auc-
ceaaor to the Honorable Jim George and such successor                  has quali-
fied and has taken the oath of office,             such successor      will be the
Justice    of the Peace, Precinct        No. 1, Place 1, until        the next
General Election.        Section    28, Article V, Texas Constitution.              In
answer to your first       question,    we hold that the Honorable           Jim
George automatically        resigned   from his office       of Justice     of the
Peace, Precinct      No. 1, Place 1, when he announced his candidacy
for the office      of Justice     of the Peace, Precinct        No. 1, Place 2.

        In answer to your second question , we hold that the Honor-
able Jim George is not eligible   for appointment    to fill    the
vacancy in office  which he created   when he resigned    as Justice
of the Peace, Precinct  No. 1, Place 1.    See Attorney      General's
Opinion No. WW-788.

         At the time Judge George filed  for Place 1, on January
1.8,1962,   there was no vacancy in Place 1 to run for in 1962.
. .
   .        .




       Hon. John Lawhon, page        5 (WW-1359)



       Judge George occupied         that post himself.      His term of office
       did not expire until        December 31, 1964.       Judge George had not
       yet resigned     from Place 1 , when he announced on January 18,
       1962.     The application      for a place on the primary ballot          to
       run for the unexpired         term of Place 1 should have been refused.
       Elections    held in 1962 are for the purpose of filling             offices    which
       commence on January 1, 1963, except in the case of races to fill:
       out unexpired      terms; and no unexplred       term existed     on January 18,
       1962, when Judge George filed          for then office.     The vacancy occurred
       on February 1, 1962, about 14 days later.               At the time Judge
       George filed     his application      to be a candidate     for Place 1, no
       vacancy existed;       therefore,   his announc.ement was void,         After he
       created    the vacancy in Place 1 on February 1, 1962, by announcing
       for Place 2, he did not thereafter          announce his candidacy         for his
       own unexpired      term.    Since there was no authority        in law to place
       the name of Judge George on the primary ballot,               In view of the
       fact that he never announced afte.r the vacancy was created,                  the
       purported     nomination    of Judge George in the primary was void,            and
       there is no Democratic         nominee for Justice      of the Peace, Precinct
       No, 1, Place 1.

                 Art.   6.01,   Texas Election   Code,   reads   in   part   as follows:
                        II       The name of no candidate       shall ap-
                 pear more than once upon the official           ballot,
                 except    (a) as a~candldate     for two (2) or more
                 offices    permitted    by the Constltutlon’to      be held
                 by the same person;       or (b) when a candidate       has
                 been duly nominated ~for the office          of President
                 or Vice-President       of the United States and also
                 for an office     refulring   a state-wide     vote for
                 election.      , . .

                  Under Article   6.01,    Election   Code, the Honorable   Jim George
   would        not  be permitted    to have his name printed       twice on the same
   ballot         for two different     offices     unless he came within exception
   “(a)”        in said statute.      Section     40 of Article,XV,   Texas Constltu-
   tlon,        provides   in part:

                        “No person shall hold or exercise,         at
                 the same time, more than one Civil         Office
                 of emolument, except of that of Justice           of
                 Peace, County Commissioner,       Notary Public
                 and Postmaster,    Officer  of the National       Guard,
                 the National    Guard Reserve,    and the Officers
                 Reserve Corps of the United States and en-
                 listed   men of the National     Ward,    the National
                 Guard Reserve,    and the Organized Reserves         of
                 the United States,     and retired   officers     of
. .     .




      Hon. John Lawhon,       page 6     (NW-1359)



               the United States Army, Navy, and Marine
               Corps, and rstlred     warrant officer-a,   and
               retired  enlisted   men of the United States
               Army, Navy, and Marine Corps, unless        other-
               wise specially    provided   herein.    . . .'

                 There have been a number of cases and Attorney               General's
      Opinions which hold that one person may hold one of the enumerated
      offices     in Section    40, Article     XVI, Texas Constitution,         and some
      other office      of a different      character,     so long as the two offices
      are not Incompatible.          But we have no case which holds that one
      person may hold the two offices            of Justice     of the Peace within
      the same precinct       at the same time.         Section   18, Article     V, Texas
      Constitution,      states    that in Justice      precincts    in which there may
      be a city of 8,000 Inhabitants,            "there    shall be elected      two Jus-
      tices    of the Peace."       If Judge George could hold both offices             at
      the same time, It would not comply with the requirement                    of "two"
      Justices     of the Peace.       The number of Justices        of the Peace in
      Precinct     1 may be reduced to a single          Justice   of the Peace, but
      this can only be done by the Commissioners                Court.     Merldlth  v.
                          Since the Commissioners          Court of Denton County
                        een fit    so to do, we must construe          Sec. 40, Art. XVI,
      and Sec. 18, Art. V, Texas Constitution,               together,     and hold that
      while a Justice       of the Peace may hold some other office              not in-
      compatible     with the office      of Justice     of the Peace, he may not
      hold the offices       of Justice     of the Peace, Precinct         1, Place 1
      and Justice     of the Peace, Precinct         1, Place 2 at the ssme time.

               This office      has held in Attorney           General's   Opinion No.
      V-1529 that the county clerk acts in ministerial                    capacity      In re-
      ceiving   certificates       of nomination        and In placing     names of
      nominees on the general          election       ballot.     That opinion     also
      held that where a certificate             is regular       on Its face,    the county
      clerk does not have the duty or authority                   to determine     questions
      of irregularity       or illegality       In the nomination        which would depend
      upon an ascertainment         and determination          of extraneous     facts.
      Nevertheless,      in this situation         the clerk      Is under a plain command
      of Art. 6.01,      Election    Code, that no candidate's            name may appear
      twice on the same ballot,           with certain        exceptions   which we now
      hold are not applicable.            The clerk does not have to rely on
      extraneous     facts   to determine       with his own eyes that the certi-
      fication   which he received         from the County Chairman of the Demo-
      cratic   Party bears the name of the Honorable                  Jim George as a
      candidate    for two different         offices.

               We answer your third question  by holding   that the name
      of the Honorable   Jim George may not appear on the General
      Election   ballot as a nominee for Justice  of the Peace,    Precinct
      1, Place 1 and for Justice    of the Peace, Precinct   1, Place 2, at
.         .
 .    .       .




     Hon. John Lawhon,          Page 7 (WW-13%)



     the same time.    We answer your fcurth   question  by holding
     that Judge George may not qualify     and hold both places
     at the same time.    If, perchance,   he should be elected    in
     the General Election    to Place 2 as the Democratic   nominee,   and
     In the same election    should be elected  to Place 1 by means of
     write-in  votes,  Judge George would then be elected     to both
     places,  but he could only qualify    and hold one of the offices.

                                    S U M M A R~,Y

                        A Justice  of the Peace for Precinct      No. 1,
                  Place 1 automatically     resigned from such office
                  when he announced his candidacy      for Justice    of
                  the Peace, Precinct     1, Place 2, there being more
                  than one year left    in his term of office     In Place
                  1 at the time he announced his candidacy        for Place
                  2.   Sec. 65, Art. XVI, Texas Constitution.

                        A Justice    of the Peace who automatically    re-
                  signed his office     by announcing  his candidacy   for
                  another   office,   while there was more than one
                  year left    In the term of office   which he vacated,.
                  may not be appointed      to serve until  the next
                  general   election   in the office  he vacated.    At-
                  torney General's     Opinion No. W-788.

                          A candidate's     name may not appear on the
                  General Election       ballot    as a candidate     for the
                  office    of Justice    of the Peace, Precinct         1, Place
                  1 and as a candidate         for the office    of Justice
                  of the Peace, Precinct          1, Place 2.    Art’. 6.01,
                  Election    Code.     Section    18, Art. V, Texas Consti-
                  tution.

                         One person may not hold both the office      of
                  Justice    of the Peace, Precinct    1, Place 1 and
                  the office    of Justice of the Peace,    Precinct  1,
                  Place 2 at the same time.      Section   18, Art. V,
                  Texas Constitution.

                                                 Very    truly      yours,

                                                 WILL WILSON
                                                 Attorney General            of   Texas


                                                 BY

 REF:rk:ms                                              Assistant
Hon.   John L$whon, page   8 (Ww-1359)


APPROVED:

OPINION COMMITTEE
W. V. Geppert, Chairman




REVIEWEDFOR THE ATTORNEYGENERAL
By:  Leonard Passmore
