                        TEEATTORNEYGENERAL

                                         OF     TEXAS


   FVILI.      WILSON
A’CFORNEY         OENERAL




                                        January    6,   199
                                                                       o-   7~08
                                                                       v-77/
            Hon. Edd B. Keyes                              Opinion    No. W-541
            County Attorney
            Tom Qreen County                              Re:    Questions    relating   to
            San Angelo,  Texas                                   the existence      of a
                                                                 vacancy in the office
                                                                 of constable     and the
                                                                 valldfty   of an election
                                                                 to fill   the’vacancy
                                                                 under the conditions
            Dear Mr. Keyes:                                      stated.

                          You have requested     an opinion  on the existence    of
            a vacancy in the office      of constable   and the validity   of an
            election  to fill    the vacancy under the conditions      set out in
            your request,    which are summarized as follows:

                           “A man was elected          to the office    of con-
                    stable    in the general        election    of 1954. He did
                    not run for office         nor was he elected       at the
                    general     election    in 1956. He has continued         to
                    ho,ld this office,        receiving      pay until  the gen-
                    eral election        on November 4, 1958, at which time
                    there was a write-in          campaign in which he was
                    defeated.      Not until     then was It discovered       that
                    the above situation          existed.

                           "Article    18, Revised Civil         Statutes,     states
                    that an office       holder holds over until           a person
                    is elected      or appointed      and qualifies.       Article
                    2355 states      that the commissioners          court shall
                    fill   vacancies     In the office      of constable.snd
                    that the person chosen shall hold office                 dntll
                    the next general        election.    Article     6883 states
                    that whenever any person elected              constable      neg-
                    lects   or refuses      to give bond and take the of-
                    flclal   oath within       twenty days after       notice      of
                    his election,      the office      shall be deemed vacant.

                          “The thought here is that, first,                 there was
                    a vacancy on January 1, 1957, when the                  incumbent
    .
                         ,.     ‘.                                                        ,I,   .,
                                                      .   “.<    .,.   .




Hon. Edd B. Keyes,            page   2 (WW-541)


         failed    to qualify,  and a8 a result  there was a
         vacancy.    Contrary to that thought is, the ln-
         cumbent holds over until     a person is elected    or
         appointed;    as a result,  no vacancy has existed
         until   it was known that the incumbent has failed
         to meet the requirements.     As a result,   it devel-
         ops< that It is necessary    to decide whether a :
         vacancy existed.’

              Supplementing   your opinion   request,     you have con-
f%rmed our inference    that the office    of constable     was not listed
on the printed   ballot   at the 1958 general    election,    and the write-
In votes were cast by the voters      having written      In both the title
of the office   and the name of the person for whom they wished to
vo,te.

               “Under Article       ‘m,   Section    65’df    the Constitution
and Article      17’of    the Revised Civil      Statutes,     the person who
was elected      to the office      of constable     in the general        election
of 1954 received        a term of two years only,          which expired       on De-
cember 31, 1956. The succeeding            term was for four years,            begin-
ning on January 1, 1957 and expiring              on December 31, 1960, and
regularly     would have been filled         at the general       election     in 1956.
Since no one was elected          in 1956 to fill       this term, the office
became constructively         vacant on January 1, 1957, and the vacancy
was subject      to being filled       by appointment      of the commissioners
court until      the general     election    In 1958, at which time an elec-
tion should have been held to fill             the remainder of the term
which will      expire   on December.31,      1960. If the write-in           votes
cast for this office         at the 1958 general        election     constituted
a valid    election,      the person who received        a plurality       of the
votes is entitled        to the office     for the remainder of the unex-
pired term. On the other hand, If no one was validly                     elected
to the unexpired        term at the 1958 general         election,      the office
continues     to be constructively        vacant and is subject          to being
filled    by appointment      of the commissioners         court until      the gen-
eral election        in 1960.

                The Incumbent who was elected            in 1954 was entitled
to hold over into the new term, In accordance                  with Article   XVI,
Section    17 of the Constitution         and Article      18 of the Revised
Civil   Statutes,    until  a successor      qualified.      See cases cited     in
34 Tex.Jur.,      Public Officers,       8 31. We do not believe        the in-
cumbent’s    failure    to qualify     for the new term is material.          A
hold-over    officer    is not required      to qualify      for the new term
In order to continue       to perform the duties          of the office.     State
v. Jordan,     228 S.W.28 921 (Te~.Clv.App.           1930, error dism;)-r'^‘lf-
he had attempted       to qualify    for the new term by taking a new
oath and giving      a new bond, he would'not           have acquired     any fur-
ther right to the office         than as a hold-over,          since he had been
neither   elected    nor appointed       to the new term. But the fact that
Hon. Edd B’, Keyes,      page   3 (WW-541)


he was holdiruz over did not orevent            there beinn a vacancv in
the.sense      thai the office     wai subject     to being-filled       by”ap-
pointment.      State v. Cocke, 54 Tex. 482 (1881);            Maddox v. York,
54 S.W. 24 (Tex.Civ.App.          1899, affirmed      93 Tex. 275 55 S W
       ;Tom v. Klepper,       172 S.W. 721 (Tex.Civ.App.           19i5, error
           ealnnina    with Januarv 1, 1957. uoon the failure               to
elect    som:one a; the 1956 general         eiectibn,    there was a con-
structive      vacancy In the office       which was subject        to being
filled    by appointment      of the commissioners       court until      the
general    election    in 1958, even though Article          V, Section      18
of the Constitution        provides    that a constable      shall hold of-
fice    “until   a successor    is elected    and qualified.”        State v.
Cocke, supra; Tom v. Klepper,           supra. Regardless        of whether an
appointment      was made, the remaining portion          of the unexpired
term was subject       to being filled      by election    at the general
election     in 1958.

                   We come then’to.the       question    of whether there. was
a valid      election    of a successor      at the 1958 general        election.
If there was a valid           election,    the elected     successor    is en-
titled     to assume the office          as soon as his election       has been
officially       declared.     Att'y    Gen. Op. ww-516 (1958).       If there
was not a valid         election,     the hold-over     incumbent continues
in office       as a hold-over       until  a successor     has qualified,       but
the commissioners          court may appoint      someone to fill       the vacancy
until     the general      election     in 1960.

               The validity     of the election       depends on whether
the voters   aenerallv     knew or should have known that an election
for the office      wastakIng     place.    Cunningham v. Queen, 96 S.W.2d
798 (Tex.Clv.App.      1936).    If the office     had~.been included      in
the order of the county judge calling             the general    election      and
the title   of the office     had been printed        on the ballot,      a valid
election   could have been held by means of write-in              votes even
thouah no candidate       had auallfled       to have his name orinted         on
the ballot    and thouah only a small fraction           of the voters      wrote
in the name of a cand .ldate.        Sterrett    v. Morgan, 294 S.W.2d 201
                  1956);   Cunningham v. Queen, supra; Att ‘y Cen. Op.
                  There is no Texas case deziding           whether there can
be a-valid    eleotion    by means of writing        in both the title      of
the office    and the name of the candidate           where the office       is
not listed    on the ballot.       In the Cunningham case, which In-
volved an attempt to nominate a candidate              at the second primary
by this method, the court held that there was no valid                  elec-
tion under the fact6       in that case, but It did not go so far
as to hold that a valid        election     could not have been held under
any circumstances       If the office     was not listed     on the ballot.
The case is also distinguishable            from the present     fact sltua-
tlon because write-in       votes are not permitted         at a second prl-
mary, and this was not a second primary but was a general                    elec-
tion.
Hon.   Edd B. Keyes,       page 4 (WW-541)


                 In other jurisdictions      the cases ares in irrecon-
cilable    conflict    on the question     of whether a valid    election
can be held where the office           is not listed   on the ballot.     For
our opinion      we adopt the principles       set out in the following
cases as representing         what we consider     to be the better    views:
People v. President        of Village    of Wappinger's   Falls,  144 N.Y.
6lb     39   E b4      (lt195)* Carlough v. Ackerman, 74 N.J.L.         16,
64 itl.    f&4*(&6);       Se&d     v. Foutch,    44 Mich. 89, 6 N.W. 110
(1880);    State,v.   Turnbull      212 Mlnn. 382 3 N.W.2d 674 (1942);
dissentAngie                         v. Hayes, 146 Ohio St. 681, 76
N.E.2d 869 (1947).

                 On the basis of the foregoing            authorities,       we are
of the opinion       that the ordering        of an election      for the office
and the listing       of the title       of the office      on the ballot      are
not absolutely       essential     to the validity      of the election.         The
failure    of the election       officers     to do these things        cannot de-
feat the right of the voters             to fill   the office     by election,
and the voters       have the right        to write in both the title          of
the office      and-the name of the candidate           of their     choice.     If
the voters      generally    had notice,through        other sources       that an
election     for the office      was taking place,        the election       would
be valid even though only a small portion                 of the persons       voting
at the election       availed'themselves         of this right.      On the other
hand, the mere fact that an office               IS legally    subject     to being
filled   at the election        Is not conclusive       that the voters        knew
or should have known that an election               for the, office      was taking
place,   especially       where the office       is not regularly      filled     at
that election.

                Whether the voters        generally     knew or should have
known that an election         for the office       was taking place is a
fact question      depending on all the surrounding             circumstances.
The publioity      given to write-in        campaigns,     the relative     num-
ber of votes cast for the office,              public   comment concerning
the legal     question     of whether the office        could be filled       at
the election,      are some of the factors          which would have a
bearing     on the question.       The initial     determination     of this
fact question      is to be made by the authority            which canvasses
the election      returns,    subject    to review by the courts.          With
reference     to the loffioe     of constable     here involved,       the ini-
tial    determination      of this fact question        Is to be made by
the Commissioners       Court of Tom Green County. If it finds                in
the affirmative       on the question,       it should canvass the votes
and declare     the results      and the County Judge should issue a
certificate     of election      to the person receiving          a plurality
of the votes.      If it finds in the negative,            it should refuse
to canvass the votes.

                Attorney    General's     Opinions  O-203, 0-7508,  V-771,
and any other     former    opinions     of this office   which may be
.   I




        Hon. Edd B. Keyes,     page 5 (WW-541)

        inconsistent  with the principles      announced herein     are modi-
        fied to conform to this opinion.
                                        SUMMARY
                       Where no one was eleoted to the office     of
                o6nstable in the general eleotlon      In 1956 for
                the suoceedlng regular term and the Incumbent
                continued in possession    of the office. as a hold-
                over offloer)   there was a constructive     vacancy       .
                In the office   beginning with January 1, 1957,
                and the remainder of the unexpired term was sub-
                {;;;   to being filled  at the,general   election   In
                     .
                       Where the 1958 general eleotlon    ballot did
                not list the office    of constable or; the printed
                ballot;   the validity  of an eleotlon  to fill   the
                unexpired term by means of write-in     votes de-
                pended ‘on whether’the voters generally     knew or
                should have known that an eleotlon     for the office
                was taking   place. This 1s.a fact question,     de-
                pending on all the surrounding circumstances,        to
                be determined Initially    by the commissioners courC
                in deciding whether the votes for the office       should
                be canvassed.
                                              Yours very truly,
                                              WILL WILSON
                                              Attorney General of Texas




        MKW:bh                                      Assistant

        APPROVED:                                               ;

        OPINION COMHITTEB
        Geo. P. Blaokburn,     Chairman
        Marvin H. Brown; JF’.
        Byron Fullerton
        Morgan Nesbitt
        REVIEWED
               FOR TRB ATTOw(gy GTRAL
        BY:                                ;,’ .,
              W.V. Geppert
                                       ,,.’
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