Honorable    Ted Butler              Opinion   No. M- 742
Criminal  District    Attorney
Bexar County Courthouse              Be:   Who fills    the office    of
San Antonio,    Texas    78204             Justice    of the Peace between
                                           the date of certification       of
                                           the winner at the general
                                           election    on November 3, 1970,
                                           and January 1, 1971, where
                                           the office    was held by one
                                           appointed under Article       2355,
                                           \~-ernon’s Civil    Statutes,  and
Dear Mr. Butler:                           related    questions.

            In your recent    letter  to this office   you stated  that
on October   1, 1969, Charles Bond was appointed       by the Commissioners
Court to the office    of Justice    of the Peace for Place Two of
Precinct   One of Bexar County.      The appointment was to fill     a
vacancy in such office     created   by the appointment    of the then
Justice  of the Peace,   John Benavides,     to the office   of Judge of
the 187th District   Court.

            At the primary election     held on May 2, 1970,            Mike
Hernandez defeated    Charles   Bond for the nomination    as          the candi-
date of the Democratic     Party for the office   of Justice            of the
Peace,  Place Two, Precinct     One, and MT. Hernandez was             unopposed
for this office    at the general   election  on November 3,             1970.

               Based upon these facts,     you have requested         the   opinion
of   this   office  upon the following     questions:

               “1 . Who is the Justice       of the Peace for
       Precinct      On:? Place Two for Bexar County, Texas,
       during the        interim’   period  between:   1) the
       certification        of the official    canvass of the
       returns     of the General Elections       which were held
       on Tuesday,       November 3, 1970; and 2) the swearing
       and qualifying         of the winner of the 4 year term
       on January 1, 1971?

              “2 .   Is Mr. Mike Hernandez     to take   the   oath

                                    -3610-
Hon.        Ted Butler,      page   2             (M-742)



            and be qualified    upon receipt          of his certification
            of election,    or must he wait          until  January 1, 1971
            to take office?

                   “3.   If your answer to number two is in the
            negative,    is the Commissioners     Court of Bexar County
            entitled   to appoint    another  to serve as Justice    of
            the Peace Precinct      One, Place Two, to hold office
            from the time of certification        of the results  of
            the general    election   until  January 1, 1971?

                   “4    If    your answer to number two above is in
            the negative,       does the Commissioners       Court of
            Bexar County       have a duty to appoint       a Justice     of
            the Peace to       hold office     from receipt   of certifi-
            cation    of the    general    election  until   January 1,
            1971?”

                  Section 18 of Article    V of the Texas Constitution    states
that        each Justice  of the Peace ‘I. . . shall hold his office      for
four        years and until  his successor     shall be elected and qualified;
.   .   .    . ,t

              Section    65 of Article     XVI of the Texas Constitution
establishes      a system of staggered       terms for various    district,
county,     and precinct    officers     and pursuant  to this provision     the
person    elected    to the office      of Justice  of the Peace,    Place Two,
Precinct     One, Bexar County, Texas,         at the 1966 election     and the
1970 election       were elected     for a term of four years.

            The beginning    date of the term of office  of Justices
of the Peace and the date upon which a person elected         to that
office   may qualify    and assume office  are fixed by Article   17,
Vernon’s   Civil   Statutes,  which reads as follows:

                    “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             of-
            fices    are regularly      filled,     and those who are
            elected     to regular     terms shall      qualify      and as-
            sume the duties       of their      respective      offices      on
            the first      day of January following           their     election,
            or as soon thereafter           as possible.        Per sons
Hon.   Ted Butler,      page   3              (M-742)



       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 re-
       ceiving      a certificate        of election,      which certifi-
       cate 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.”

           Based upon the foregoing   provisions  of the Constitu-
tion and statute,   John Benavides  was elected  to and was serving
a term of four years which began on January 1,~ 1967, and extended
through December 31, 1970.     At the November 3, 1970, election
Mike Hernandez was elected   to the same office    for a term of four
years beginning   on January 1, 1971, and ending on December 31,
1974.

              It is true that under the provisions              of Article     8.36,
Texas Election        Code, Mr. Hernandez was entitled            to a certificate
of election      to the office      of Justice     of the Peace, Place Two,
Precinct     One, immediately       after   the canvass     of the election
results    on November 9, 1970.           However, this does not entitle
Mr. Hernandez to qualify          and enter that office         prior   to January
1, 1971.      He was elected      to a four-year        term which begins      on that
date;    he was not elected       to any portion        of the term which ends
on December 31, 1970.           Article    17, Vernon’s     Civil   Statutes,
fixes    the beginning      date of his term of office          and time for
aualifvine      as January 1. 1971.         He has no rieht       to the office
prior    to ihat time. ‘Ex.parte          Sanders,    147 Tex. 248, 215 S.W.2d
325 (1948);      Anderson v. Parsley          37 S.W.Zd 358 (Tex.Civ.App.
1931. error      ref.).     This is mad; clear        by the fact that Article
17 aiso provides-for         a person elected        to-an unexpired      term to
qualify     and assume office        immediately     upon receiving     a certifi-
cate of election.

             When John Benavides     qualified    for the office    of Dis-
trict   Judge he vacated    the office     of Justice  of the Peace.
Biencourt    v. Parker,   27 Tex. 562 (1864);,State      v. Brinkerhoff,
66 Tex. 45 17 S.W. 109 (1886).           The power to fill     vacancies
in the office    of Justice    of the Peace is conferred       upon the
commissioners    court by Section      28 of Article   V of the Texas
Constitution    in the following     language:

             “Sec.   28.       Vacancies.In       Offices Of Judges          Of
       Superior    Courts      To Be Filled       By The Governor.


                                         -3612-
Hon.   Ted Butler,    page   4              (M-742)



             “Vacancies   in the office   of judges of the
       Supreme Court,    the Court of Criminal Appeals,       the
       Court of Civil    Appeals and.the    District   Courts
       shall be filled    by the Governor until      the next
       succeeding   General Election;    and vacancies    in
       the offices    of County Judge and Justices      of the
       Peace shall be filled     by the Commissioners     Court
       until   the next succeeding    General Election.”
       (Emphasis added.)

In furtherance     of that       authority    the Legislature  h&s enacted
Article   2355,   Vernon’s       Civil   Statutes,  which reads:

              “The Court shall      have power to fill
       vacancies     in the office    of:     County Judge,
       County Clerk,      Sheriff,   County Attorney,         County
       Treasurer,      County Surveyor,      County Hide In-
       spector,    Assessor     of Taxes,    Collector     of
       Taxes, Justices       of the Peace,     Constables!      and
       County Superintendent        of Public      Instruction.
       Such vacancies       shall  be filled     by a majority
       vote of the members of said Court. nresent
       and voting,      and the person chosen-shall           hold
       office    until   the next general      election.”
       IEmphasis added. )

Upon performing      the acts necessary        to qualify    for Justice     of the
Peace and assuming the duties           of that office,      Charles   Bond be-
came a de jure officer.          State v. Jordan,       28 S.W.Zd 921 (Tex.Civ.
App. 1930, error dism.);         see Hamilton v. State,         51 S.W. 217
(Tex.Crim.    1899).     If the language         of Section    28 of Article    V,
Texas Constitution,      and Article       2355, Vernon’s      Civil  Statutes,    be
taken literally,      Judge Bond’s tenure in such offic,e            would ap-
parently   end with the general         election    held on November 3 1970.
However, for the reasons         which follow,      we are of the opinion       that
Judge Bond is entitled       to hold his office         through December 31,
1970, and thereafter       until    such time as Mr. Hernandez has qualified
for that office.

             The primary purpose        and intent     of those provisions    of
Section    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.      This becomes clear        when we consider     the recent


                                       : -3613-
Hon.   Ted Butler,       page   S             (M-742)



history    of amendments to this constitutional  .- - _ provision.
                                                               .          . Prior
                                                                               .
to 1958, Section      28 of Article      V provided     that “vacancies       in
the office      of County Judge and justices         of the peace shall be
filled   by the Commissioners       Court until      the next general        election
for such offices.”         When Sections    64 and 65 of Article           XVI of
the Texas Constitution        were added in 1954, the terms of office                 of
certain    officers,    including   County Judge and Justices             of the Peace,
were changed from two to four years effective                with the 1954
general    election.     Thereafter    it was held that where a Justice               of
the Peace who was elected         to a four-year       term at the 1954 general
election     resigned   in 1955, the person appointed            to fill    the
vacancy    was entitled     to hold the office       until   the 1958 general
election     and that the office      was not subject       to being filled        by
election     in 1956.     Rawlins v. Drake,      291   S.W.Zd    349   (Tex.Civ.App.
1956, no writ).       Subsequent to this holding,           Section      28 of Article
V was amended to its present          form.

              In facilitating          the return      of those offices            that have
been filled      bv anoointment         to the choice        of the electorate.             the
Legislature      has pkovided        for the nomination            for and election           to
unexpired     terms of office         which
January following          the election.
-It  has further       soecified     thatoersons         elected      to unexoired         terms
shall     be entitled      to qualify      and assume the duties              of-office
 immediately     upon receiving         a certificate        of election.            Art. 17,
Vernon’s     Civil     Statutes.       The Legislature         has not provided
 for the nomination          for and election        to unexpired          terms which
do not extend beyond the first               day of January following                 the
election.       There being no provision             for such an election,               none
can be held.        for there is no inherent             right     to hold an election,
 and one held without           authority     is void.      -Countz      v. Mitchell,
 120 Tex. 324, 38 S.W.2d 770 (1931);                 Trustees        of Ind. School Dist.
v. Elbon,     223 S.W. 1039 (Tex.Civ.App.                1920      no writ).         The wisdom
 of this omission         becomes auuarent when we ionsider                   the very short
 period    to which one would G elected                and the fact that there would
 be two changes        in the office       within     a two-month period.               While these
 same reasons       speak against        the proposition         that the appointing
 power should again come into play during                     this     interim,      that
 proposition      is foreclosed        by the fact that other provisions                     of
 our Constitution         and statutes      make provision           for the status          of
 the office     and its incumbent appointee                during      the period       in
 question.

               Section 17 of Article    XVI of the Texas Constitution
provides     that “All officers    within  this   State shall   continue   to
perform     the duties  of their offices    until    their successors    shall


                                          -3614-
Hon.   Ted Butler,     page   6                  (M-742)



be duly qualified.”       Acting pursuant     to this provision      the Legis
lature    has provided   in Article.18    of Vernon’s    Civil   Statutes  tha
“Each officer,     whether elected     or appointed    under the laws of
this State,     . . . shall hold his office       for the term provided
by law and until      his successor    is elected    or appointed    and
aualifies     . . . .‘I The effect     of these nrovisions     was eXDlained
in State v. Jordan,      28 S.W.2d 921 (Tex.Civ.App.        1930, error dism
at pages 923-924:
             ,I,
                            The practical    effect      of a constitutional
       provision      directing     that public     officials      should hold
       over until       their   successors   are oualified         is that a
       public    office     does not become vacant,           in the sense-
       that there is no incumbent to fill                it,   except   in the
       case of death.“’           (Emphasis added.)

We think this applies         with       equal    force    whether    the   incumbent     be
elected  or appointed.

              In Ex parte Sanders,       147 Tex. 248, 215 S.W.Zd 325 (1948)
it was contended        that the tenure of office        of a District     Judge
appointed     to fill    a vacancy terminated       on the day of the general
election     and that a contempt order entered           by him thereafter
was void because he was no longer            the judge of that court.           In
rejecting     this contention      the court    held that the holdover        pro-             :
visions     of Section     17 of Article    XVI must be construed       with
Section     28 of Article     V in order to preserve        the orderly    process
of government      and that one appointed        as District     Judge under
Section     28 of Article     V was an officer      within   this State who is
continued     in office     by Section   17 of Article      XVI until   his success
shall     be duly qualified.       Our Court of Criminal        Appeals reached
the same result       in Hamilton v. State,        51 S.W. 217 (Tex.Crim.
1899) where the authority          and actions     of an annointed     District
Judge were challenged         as-being   void where he continued        to exer-
cise    the duties    of that office     in the succeeding       term when no
one was elected       to that term of office         at the preceding    general
election.       In our opinion     these holdings      apply to the situation
presented     by your request.

              Accordingly,        your    questions        are   answered   as follows:

           First,   the incumbent appointee   Charles    Bond is the
Justice of the Peace of Precinct     One, Place Two, of Bexar County
for the period    of time between the general   election    held on
November 3, 1970 and January 1, 1971.



                                           -3615-
Hon.   Ted Butler,     page   7              (M-742)



           Second,  having been elected to a term of office    which
begins upon January 1, 1971, Mike Hernandez cannot qualify       for
office prior   to that time even though he has received   a certifi-
cate of election.

            Third and fourth,    in the absence  of the death or
resignation   of Judge Bond prior    to January 1, 1971, the Com-
missioners   Court of Bexar County has neither      the power nor the
duty to appoint    anyone to the office   of Justice   of the Peace
of Precinct   One. Place Two, of Bexar County, because there will
be no vacancy    in that office.

                                  SUMMARY

                Where a vacancy in the of:fice            of Justice      of
       the Peace occurred         during the jterm which runs
       through December 31, 1970, the person                   appointed
       to that office        pursuant   to Section         28 of Article
       V, Texas Constitution,          on October       1, 1969, is en-
       titled,      by virtue    of Section     17 of Article         XVI,
       Texas Constitution,         to hold his office           during the
       -oriod     between the general        election       held on
           vember 3, 1970, and January 1, 1971.                   The Com-
           ssioners     Court has no power or duty to appoint
          .yone to that office        during    such period        because
          .ere is no vacancy in the office.                 The person
           ected to such office        at the general          election
             November 3, 1970, for the term beginning                   on
           nuary 1, 1971, cannot qualify              and enter into
          ‘fice   prior   to January 1, 1971, even though he
           s a certificate       of election.         Art.    17, Vernon’s
           vi1 Statutes.                           .“/




          d by W. ‘0.     Shultz
          nt Attorney      General




                                         -3616-
Hen.     Ted Butler,    page   8    (M-742)



AF9ROVED:
OPIXION COMMITTEE
Kerns Taylor,   Chairman
W. E. Allen,   Co-Chairman
William  J. Craig
James Quick
Dick Choate
Steve Hollahan

MEADE F. GRIFFIN
Staff     Legal   Assistant

~ALFRED WALKER
 Executive      Assistant

 NOLA WHITE
 First     Assistant




                                   -3617-
