   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                                  June 28,2002



The Honorable Gwyn Shea                                    Opinion No. JC-05 19
Secretary of State
State of Texas                                             Re: Whether a 1999 amendment to article XVI,
P.O. Box 12697, Capitol Station                            section 65 of the Texas Constitution,         which
Austin, Texas 78711                                        removed the staggered terms for certain county
                                                           offices, substantively affects offices created after
                                                           that date (RQ-0488-JC)
Dear Secretary Shea:

        You ask about the effect of the 1999 amendment to article XVI, section 65 of the Texas
Constitution on newly created offices. The amendment deleted provisions establishing staggered
terms of office for certain district and county offices listed therein, with consequences you describe
as follows:

                  Before the 1999 amendment, it was clear that if a new county or
                  district office listed in the Article XVI, Sec[.] 65 schedule was
                  created in time to place the office on the ballot in an even numbered
                  year, the new office followed the constitutional schedule. . . . If the
                  even-numbered       year was a year during which that office was not
                  regularly scheduled for a full term, it appeared on the ballot as, and
                  the officer was elected for, the remainder of the unexpired term. . . .
                  [I]f the legislature created a new county court at law during the 76th
                  Session in 1999, that new county court would have appeared on the
                  2000 ballot for a two-year unexpired term. The office would again
                  appear on the ballot two years later in 2002 for a full term, pursuant
                  to the constitutional schedule.’

         You wish to know whether newly created offices subject to article XVI, section 65 may be
placed on a staggered election schedule and whether the county or the state has the authority to put
the office on the ballot for any term other than four years. A newly created office listed in article
XVI, section 65 may not be placed on the ballot for any term of office other than four years.
However, constitutional provisions mandating the election of specific officers to four-year terms do
not prevent the legislature from bringing the office into existence partway through a four-year term



         ‘Letter from Geoffrey S. Connor, Assistant Secretary of State, to the Honorable   John Cornyn, Texas Attorney
General (Jan. 4,2002) (on file with Opinion Committee).
The Honorable    Gwyn Shea - Page 2             (JC-0519)




with the vacancy to be filled pursuant to law, generally by appointment until the next general
election. The staggered election schedule may be continued for newly created offices enumerated
by article XVI, section 65. Section 202.003 of the Election Code establishes the date when a newly-
created office is first placed on the ballot, and in some instances that date may conform to the
staggered election schedule. TEX. ELEC. CODE ANN. 9 202.003 (Vernon Supp. 2002). If the 202.003
date does not conform to the staggered election schedule, the legislature may expressly provide in
the statute creating the office for conformity to the staggered election schedule. Id. In this case, the
legislation creating an office should provide that the officeholder shall be elected to a four-year term
at the first general election date that conforms to the election schedule, and that the vacancy in the
office that exists as of its creation shall be filled as provided by law.

         We turn to your question. Article XVI, section 65 was adopted in 1954 by a constitutional
amendment that also established four-year terms of office for elective district, county, and precinct
officers. See Tex. S.J. Res. 4,53d Leg., R.S., 1953 Tex. Gen. Laws 1164 (caption). See also TEX.
CONST. art. V (four-year terms), 8 8 7 (district judge), 9 (clerk of district court), 15 (county judge),
18 (justice of the peace, constable, and county commissioners),          20 (county clerk), 21 (county
attorney), 23 (sheriff), 30 (judges of courts of county-wide jurisdiction and criminal district
attorneys); art. VIII, 8 14 (four-year terms for tax assessor collector); art. XVI, $6 44 (four-year
terms for county treasurer and county surveyor), 64 (four-year terms for inspector of hides and
animals). The increase of local officers’ terms of office from two to four years made it necessary
“to stagger the effect of the amendment, so that all the elective district, county, and precinct offices
would not expire in the same year.” TEX. CONST. art. XVI, 0 65 interp. commentary (Vernon 1993).
The 1954 amendment staggered the terms of office by providing that certain officeholders would be
elected for terms of varying length in the November, 1954 general election. Article XVI, section 65,
as adopted, provided that:

                        The following officers elected at the general election in
                November, 1954, and thereafter, shall serve for the full terms
                provided in this Constitution: (a) District Clerks; (b) County Clerks;
                (c) County Judges; (d) Judges of the County Courts at Law, County
                Criminal Courts, County Probate Courts, and County Domestic
                Relations Courts; (e) County Treasurers; (f) Criminal District
                Attorneys; (g) County Surveyors; (h) Inspectors of Hides and
                Animals; (i) County Commissioners for Precincts Two and Four; (j)
                Justices of the Peace.

See Tex. S.J. Res. 4, supra.   It then provided for staggering the election of persons to fill certain
other offices, stating that:

                       Notwithstanding    other provisions of this Constitution, the
                following officers elected at the general election in November, 1954,
                shall serve only for terms of two years: (a) Sheriffs; (b) Assessors
                and Collectors of Taxes; (c) District Attorneys; (d) County Attorneys;
The Honorable   Gwyn Shea - Page 3             (JC-0519)




                (e) Public Weighers; (f) County C ommissioners for Precincts One
                and Three; (g) Constables. At subsequent elections, such officers
                shall be elected for the full terms provided in this Constitution.

Id. The amendment also provided for staggered terms of an office held by two or more persons in
the same district, county, or precinct and distinguished on the ballot as “Place No. 1,” “Place No. 2,”
and so forth, again by providing that one group of officers elected in November, 1954 would serve
initial terms of two years, while the other group would serve initial terms of four years. See id. See
also TEX. ELEC. CODE ANN. 8 52.092(g) (Vernon Supp. 2002) (listing on ballot of two or more
offices having the same title except for a place number). Thereafter, all such officers would be
elected for terms provided by the constitution. See Tex. S.J. Res. 4, supra.

         A 195 8 amendment added a “resign-to-run” provision to article XVI, section 65. See Tex.
H.J. Res. 31,55th Leg., R.S., 1957 Tex. Gen. Laws 1641. The amendment stated that “if any of the
officers named herein shall announce their candidacy, or shall in fact become a candidate,” in any
election for any other office at a time “when the unexpired term of the office then held shall exceed
one (1) year,” the announcement or candidacy would constitute an automatic resignation of the office
then held. Id.

         You inquire about the effect ofthe 1999 amendment to article XVI, section 65, which deleted
all provisions relating to the staggered terms of office and left only the “resign-to-run” provision
for the offices listed in that section. See Tex. H.J. Res. 62, 76th Leg., R.S., 1999 Tex. Gen. Laws
6611, 6642-43. The 1999 amendment to article XVI, section 65, was included in House Joint
Resolution 62, which proposed “a constitutional amendment to eliminate duplicative, executed,
obsolete, archaic, and ineffective constitutional provisions.” Id. (caption). A bill analysis of House
Joint Resolution 62 described the amendment to article XVI, section 65 as “removing provisions
providing for the original staggering of county offices when the terms of such offices were extended
in 1954.” HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. Comm. Subst. H.J. Res. 62,76th
Leg., R.S. (1999) at 2; see also SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. H.J. Res. 62,
76th Leg., R.S. (1999) at 4 (deletes text regarding certain precincts, officer terms, and officer
elections; makes conforming and nonsubstantive changes).

         The language deleted from article XVI, section 65 in 1999 appeared on its face to be
obsolete, and its deletion appeared to be nonsubstantive, because it referred to staggering the terms
of local officers elected in the November, 1954 general election. However, the Texas Supreme Court
has held that article XVI, section 65 mandated a staggered election schedule for all the offices
enumerated therein, rather than only those in existence when the provision was adopted. See
Fashing v. El Paso County Democratic Executive Comm., 534 S.W.2d 886,889 (Tex. 1976). See
also Tex. Att’y Gen. Op. Nos. H-726 (1975) at 2, M-566 (1970) at 2, C- 147 (1963) at 2-3, WW- 1292
(1962) at 4 (holding that newly created local offices must be filled by election according to the
election schedule established by article XVI, section 65).
The Honorable    Gwyn Shea - Page 4               (JC-0519)




          In Fashing, the court harmonized article XVI, section 65 of the Texas Constitution with
 article V, section 30, which provided a four-year term for judges of courts of county-wide
jurisdiction.   The Fashing court determined that “[tlhe clear intent of Article 16 5 65 is to stagger
elections so that all county and district offices do not expire simultaneously.” Fashing, 534 S.W.2d
 at 890. Article XVI, section 65 established the schedule for electing persons to the four-year terms
 set by article V, section 30, “both as to offices in existence in November 1954, and those created
thereafter.” See id. at 889. A newly created local office thus had to be filled by electing an
individual to the remainder of the unexpired term where necessary to maintain the election schedule
established by article XVI, section 65. See id. at 890. Thus, article XVI, section 65 governed the
election years in which particular local offices were filled, using 1954 as the base year, and newly
created offices had to be filled by election in the year applicable to each office. See Chenault v.
Bexar County, 782 S. W.2d 206,207 (Tex. 1989) (setting out schedule for electing justices of the
peace, place 1 and place 2).

         It is well established that the legislature may not authorize the election of an officer for a term
that differs from the term provided in the constitution. See Draughn v. Brown, 65 1 S.W.2d 728,730
(Tex. 1983); E a d es v. Drake, 332 S.W.2d 553 (Tex. 1960); Tex. Att’y Gen. Op. No. MW-536 (1982)
at 4. Newly created offices listed in article XVI, section 65 are not exempted from this general rule.
Thus, a newly created office within the list in article XVI, section 65, may not be placed on the ballot
for a term of less than four years.

         However, the legislature may continue to maintain the staggered election schedule if it
wishes to do so. A general rule for placing newly-created offices on the ballot is found in section
202.003 of the Election Code. Section 202.003(a) provides that “an election for the first full term
of an office for which no previous election has been held is governed by the same provisions as an
election for the remainder of an unexpired term, and for that purpose, references in this chapter to
an unexpired term include a full term in the case of those offices.” TEX. ELEC. CODE ANN. 8
202.003(a) (Vernon Supp. 2002). See id. $5 202.004-.006 (Vernon 1986 & Supp. 2002) (nomination
to an unexpired term). Section 202.003(b) establishes the date when the new office first appears on
the ballot:

                        (b) If an Act of the legislature creating an office prescribes a
                date of creation that is later than the effective date of the Act, and if
                an authority authorized to create the office at an earlier date has not
                done so, the office shall appear on the ballot as follows:

                                (1) if the date of creation occurs in an even-
                         numbered year, the office appears on the ballot in that
                         even-numbered year;

                                (2) if the date of creation occurs on or before
                         March 1 of an odd-numbered year, the office appears
                         on the ballot in the preceding even-numbered year;
                         and
The Honorable    Gwyn Shea - Page 5             (JC-05 19)




                                 (3) if the date of creation occurs after March 1
                        of an odd-numbered year, the office appears on the
                        ballot in the subsequent even-numbered year.

Id. 8 202.003(b) (Vernon Supp. 2002).

          In some cases, the date established for offices enumerated in article XVI, section 65 by
section 202.003 of the Election Code will conform to the staggered election schedule. If the section
202.003 date does not conform to the staggered election schedule, the legislature may continue to
maintain the staggered election schedule for newly-created offices of the kind listed in article XVI,
section 65. A Texas Supreme Court opinion about a newly-created district court, an office that is
not mentioned in article XVI, section 65, explains how this can be done. See Eades v. Drake, 332
S.W.2d 553 (Tex. 1960). The court in Eades addressed a statute providing that, at the first general
election after the creation of the 160th District Court, the judge of the court would be elected for a
term of two years and thereafter to a four-year term. See id. at 554. The court stated that “[t]he
constitution provides for elective four-year terms for judges of permanent constitutional district
courts [see TEX. CONST. art. V, $9 7,301 and there can be no elective two-year terms by virtue of
legislative enactment.” Id. at 556. Eades then determined that there was a vacancy in the office
when the statute creating it became effective and that the governor should fill the vacancy by
appointing a qualified person “who shall hold such office until the next succeeding general election
and until his successor shall be duly qualified.” Id. at 556; see TEX. CONST. art. IV, 8 12, art. V, $0
7,28, art. XVI, 6 17. At the next general election, the voters would elect a judge to a four-year term.
Eades, 332 S.W.2d at 556. Thus, the constitutional provisions mandating the election of district
court judges to four-year terms, see TEX. CONST. art. V, §§ 7,30, do not preclude the legislature from
bringing a district court into existence halfway through a four-year term, with the vacancy to be
filled by the governor.

        Accordingly, the legislature may maintain the staggered election schedule for newly created
offices enumerated in article XVI, section 65, if it wishes to do so. The legislation creating the office
must provide for electing the officeholder to a four-year term at the first general election date that
conforms to the election schedule formerly established by article XVI, section 65 and for filling the
vacancy that exists in the office from its creation until the elected officeholder qualifies for it. See,
e.g., TEX. CONST. art. V, 5 28 (vacancy in office of justice of the peace filled by commissioners
court); TEX. GOV’T CODE ANN. 5 25.0009 (Vernon 1988) (vacancy in office of judge of statutory
county court, including vacancy existing on creation of office). See also Act of May 23,2001,77th
Leg., R.S., ch. 692, 8 4(a)-(b), 2001 Tex. Gen. Laws 13 17, 13 18 (creating Probate Court No. 1 of
Collin County and stating initial vacancy in office of judge of shall be filled by election) (enacting
TEX. GOV’T CODE ANN. 5 25.0453).
The Honorable   Gwyn Shea - Page 6             (JC-05 19)




                                        SUMMARY

                         Article XVI, section 65 of the Texas Constitution, before it
                was amended in 1999, required a staggered election schedule for the
                offices it listed, newly created offices as well as offices existing in
                 1954, when the constitutional provision was adopted. The 1999
                amendment deleted the language requiring a staggered election
                schedule. A newly created office listed in article XVI, section 65,
                may not be placed on the ballot for any term other than four years,
                and the date when it would first be placed on the ballot would be
                determined by section 202.003 of the Election Code. In some cases,
                the section 202.003 date will conform to the election schedule for the
                office. If it does not, the legislature may continue the staggered
                election schedule for newly created article XVI, section 65 offices by
                providing in the legislation creating the office that the officeholder
                shall be elected to a four-year term at the first general election date
                that conforms to the election schedule, and that the vacancy that
                exists in the office from its creation shall be filled by appointment or
                as otherwise provided by law.

                                               Yo    s ve        truly, +



                                             42 i
                                               JOHN
                                                    .
                                                        --
                                                             /


                                                        CORNYN
                                                               cJ--y-


                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
