                            THE          A~TORNEYGENERAX
                                            OF TEXAS

  WILL     WILSON
A-KSNEY       GENERAI.                               September 88, 1958

          Honorable Noah Kennedy, Jr.
          County Attorney
          Nueaem      County
          Corpus      Chrllstl, Texas
                                                                     Opinion No. WW-367
                                                                     Re:   If a vaaanoy oaauru in the
                                                                           offioe   of' County   Attorney
                                                                           prior to the general elea-
                                                                           tion in a year when the
                                                                           offiae  of County Attorney
                                                                           Is not up for ale&ion,       ‘aan
                                                                           the vaaanay be filled     at
                                                                           the next general   election
          Dear Mr. Kennedy 8                                               and related questions.
                     We have reaeivea                          your letter     of August 26th in
          which you, ask the following                           questionsr
                             “(1)
                             If a oraanoy oaoum In the offiae     of
                County            prior to tie general eleatlon
                                  Attorney                         in
                a year when the office   of County Attorney is not
                up for rleotlon,   aan the vaoaney be filled   at
                said general cleation?
                      “(2)  Aasumlng that the armwer to question
                number (1) is ‘yes*, wheat are the possible  ways
                for a candid&e to get hias name on the ballot for
                the office  of County Attorney fn the general elec-
                tion?
                       “(3)    If It is possible  for a oandldate to
              ~’get his name on the ballot au an independent, when
                must hie appllaation     be filed and does the.general
                law pertaining     to lnaepenaents apply to the prere-
                quisites    for getting his name on the ballot?        .
                             “(4)         If the County Attorney tenders his
                   resignation              beforq the general election ‘to take
                   &ff&at         boa   'Jamua~.'1,-195~1~9~'aohs~'thib              &+&te-&     ".'
                vaaanay on the date of tender suah as would permit
                such vacancy to be filled at the next generol
                election?
Honorable   Noah Kennedy, Jr.,    Page 2 (~~-367).


            “(5)    If you have answered question Number
     (3) to the effect     that the general law relating
     to Independents does apply and that his prere-
     qulsltes    for getting his name on the ballot are
     the ssme as those presarlbed         In said general
     law, then must each of the persons who signed
     his petition     have refrained    from voting In both
     the last prior primary and the last prlor run-
     off primary election      ~of either politlaal   party?"
           Seation 21 of Artiale V of the Constitution   of
Texas provides In part as follows:
           II       In case of vacancy the Commissioners
     Court of ch& dounty shall have the power to appoint
     a Coun;4y Attorney until the next general election.
     . * .      (hphasls   added).
            Artlale   2355 of Vernon's    Civil   Statutes   provides:
            "The oourt shall have power to fill     vanamoiee
      in the office   of: a. . a County“'Attorney, . , .
      Such vaaancies shall be filled     by a majority vote
      of the members of said Court, present and voting,
      and the person chosen shall hold office     until the
      next general eleotlon."     (Kmphasls added).
            In our opinion, when a vaoanoy ooours in the office
of County Attorney, such ,vaaanay Is to be fllled         Initially     by
an appointment by the Commissioners I Court, ana a ~uoaessor
Is to be eleated at the nextgeneral         eleotion following      the
occurrence of the vacancy.       Sterrett v. Morgan, 294 S.W.2a
201 Tex. Clv. App., 1956); Attorney General's Opinion WW-426
(195 B); Attorney ffeneral's   Opinion S-215 (1956).       This general
rule Is probably subjeetto       the qualification   that in order
for a valid election    to be held for the unexpired term, the
existence   of the vacancy must become known in sufficient           time
prior to the date of the eleotfon      to put the public on notice
that the vacancy is to be fflled      at that election.       See Cun-
ninghsm v, Queen, 96 S,W.2d 798, 800, Headnote 2 (Tex, Civ.
App., 1936 error dism.).       Without passing on the question of':'
whether a GalId election     could be held where the vacancy
occurs too late for candfdates to have their names placea on
the ballot,   we think ft is clear that a valfa election           can be
held if the vacancy occura within the statutory         time for noml-
nation of independent candidates even though there fs no
statutory method provided for the making of party nominations.
Qllmore v. Waples, 188 S,W, 1037 (Tex. Sup,, 1916); Sterrett
v.   0 rgan, supra; Attorney Generalga Opinion s-215.           As thus
.   -




              Honorable     Noah Kennedy, Jr.,       Page 3 (w-367).


               qualified,    your first   question    is answered   "yea."
             ,I-
        ,'                  In your ae00na      question    you ask what are the poasl-
              ble ways for a person to get his name on the ballot as a
              aandldate for an unexpired term In the offlae                 of County Attor-
              ney.     Article    6.01 of the &leatlon Code provides that do nanib
              shall appear on the official           ballot   except that of a candidate
              who was aatually nominate8 either as a party nominee or a8 a
              non-partisan       or Independent aanaiaate.         If the vaaancy oaaurs
              In sufficient       time for party nominations to be made In the
              primPry eleatlons,         both party ana Independent nominations for
              an unexpired term are subject to the same regulations                 aa noml-
              nations for a full term.           If a vacanoy oaauw in a state or
              distrlat     offioe    too late for a nomination to be made In the
              primary election,         the proper exeoutlve oommlttee of a polltioal
                arty   may rmmlnate      a party aanaiaate'aa      provided    In Artlola
              i .04 of the Eleation Oode, but the county executive                aommlttee
              of a polltloal       party eannot make an original          nomination for a
              county offiae       in olraumstanaes of this nature.            Qllmore v.
                                    Attorney Qeneral’s Opinion S-215.           I Gil more
                                  is stated that a political         party may ielect
                                             not contrary to law and agreeable with
              party usage where no statuCory provision               is made for nomlna-
              tlon.     From later aane8 It appears that the county aonventlon
              aould select a nominee for a aounty office,                or the nomination
              could be made in the state convention in the event the aounty
              aonventlon did not make a nomination,              Brewster 0. Haesez, 232
              S.w.2d 678 (Tex. DIV. App. 1950); Wlll’iams v. Runtress, 272
              S.W.2d 87 (Tex. Sup., 1954 * There has been no deolslon on
              whether my other method of~noti~atlon              for a aounby offloe
              would be open to a polltioal            party where the vacanoy oaours
              too late for a nomfnatlora to be made lm the Fegular county and
              state conventions,         but as UlplRetfaal     matter it appears that
              there Is no feasible         way for a polftiaal       party to make a noml-
              nation after Its aonventfons have been held.                  In aa8e of
              vaaanoiea In aounty offlcse6 ocaurlng too la%e for pa&y noml-
              nations to be made, *he only way for~a candidate to have his
              name ~plaoed on the ballot         I.8 as aw independent eurdldate.
              Candidates maa also rum aa write-in             aanaidate8 without having
              their names printed on the ballot.              Sterrett    v. Horgan, supra.
                           In anawer to your third questlow, in the event a
              prospeatlve    candidate deafFern to run for the Paexpired term
              of the offloe    of County Attorney aa an Independent, hlr aan-
              diaaay ,would be subject to *he provlrlotir      of &tloler   13.50 -
              13.53, Texas ElectIon Code, excrepti as n&ed~Bolow,         In our
               opinion.   the deadlins for Piling the applfaation       md cronsent
               to beaome a aanalaate (whfoh would be September 22, 1958, for
               the 1958 general    election), fr not oontrolllng   where the vaaanay
Honorable   Noah Kennedy, Jr.,           Page 4 (WW-367).


occurs too late to afford candidates a reasonable time to
aomplcte and file their appllcatlons          before the ,deadllne.
In Sterrett     v. Hyer, Cause No. 16,058 in the Dallas Court of
Civil Ap eals, decfded on October 5, 1956 (opinion not
reported P , the Court had under conelderatlon          the question of
whether the deadline for filing         was controlling     3.n the
following    situation.      A vacancy had occurred in the office
of Judge of a County Court at Law on September 1, 1956, but
It was not finally       determined that a vacancy In that office
was subject to belng,fllled         at the 19% general election
until the Court of Civil Appeals rendered its deaision in
Sterrett   v. Morgan, 294 ‘S.Y.2d 201, on September 28, 1956.
   t    that, decision,     and’subeequent to the statutory       deadline,
theeEerson who had been appointed to, fill          the vacancy filed
his application      au an independent candidate.         The Court held
that under the circumstance~s of the case the candidate had
not had a reasonable oppotiunlty          to comply\with the letter      of
the law in the matter of the filing          of his kpplication      aa an
independent candidate and that the applicatipn             should be
received and acted upon by the County Judge i>n the same manner
as though it had been filed within thirty days after the
second primary eleotion.          By similar reasoning,     we think can-
didates are entitled        to a reasonable time within which to file
their applications       after the vacancy occurs,       but in any event
the application      must be filed In sufficient       time to permit the
election    officers    to have the ballots    prepared in accordance
with statutory requirements,          What constitutes     a reasonable
time for candidates to file for the office           of County Attorney
of Nueces County will be a matter for the initial              determination
of the County Judge, the officer          with whom the applications       are
to be filed.
              The answer to Question No. .(:k) .deptinda upon when a
 vacancy occurs.      We have found no statute regulating         the resig-
 nation of a County Attorney to take effect           at a future date.
 Article 4.09 of the Election       Code relates    to vacancies to be
 filled    by a special eILectlon only, and since vacancies In the
 qffice    of County Attorney are to be filled       by appointment
 until the next general election,        such statute Is not appll-
 cable.     However, It may;be noted that the provision          in Article
 4.09 permlttlng the holding,of,      a special    election   prior to the
 effective    date of a resignation    to become effective       at a
 future date was added because~,the Legislature           was of the opin-
 ion that express etatut.ory~~a~thorfty was necessary to enable
 the holding of an election      for.an unexpired term prior to the
~date on whlah the reafsnation       became. effective.      See Attorney
 General~s Opinion O-g093 (1943) for a dfroussion            of.the back-
 ground of this amendment, popularly called the “cfirner Amend-




                              . .., i;,:::.. ,,
    Honorable Noah Kennedy, Jr.,    Page 5 (~~-367).


\
    merit."  It seems to us that if the Incumbent County Attorney
    resigns before the general election   of 1958, with such reslg-
    nation to be effective  after the general election   of 1958,
    no vacancy would occur so as to allow.hls   successor to be
    elected at the general election   of 1958.
               Since no nomination for the office   of County Attor-
    ney of Nueces County was mad& at either of the primary elec-
    tions in 1958, we are of the opinion that signers of the
    Independent's   application to have his name placed on the
    ballot  need not have refrained  from voting In either of the
    two primary elections.


                                   SUMMARY

                 Vacancies In the office   of County
                 Attorney are to be filled   by the
                 Commissionersf Court, such appointee
                 to serve until his successor   is elec-
                 ted at the next general election.
                 If the vacanay occurs too late for
                 party nominations to be made, the only
                 way candidates may run In the general
                 election   Is as Independent candidates
                 or write-ln,candfdates.
                 Articles    13.50 - 13.53, Eleation Code,
                 govern the candidacy of independent
                 candidates for an unexpired term In
                 the offlce.of    County.Attorney,  except
                 that the statutory    deadline for filing
                 the application    and consent to candl-
                 dacy is not controlling     where the vacan-
                 cy occurs too late to afford the candl-
                 dates a reasonable time to complete snd
                 file their appllcatfons     before the dead-
                 line.
                 If a resignation   is submitted before
                 the general election,   with such reslgna-
                 tion to be effective   after the general
                 election,  no vacancy would occur so as
                 to allow a successor to be elected at
                 the general election   between the date
                 on which the resignation    was submitted
Honorable   Noah Kennedy, Jr.,    Page 6 (~~-367).


               and the date on which It was to
               become effective.
               When there has been no nomination
               made In the'prtiary   election,
               signers of an Independent's     appllca-
               tlon to have his name on the ballot
               need not have refrained     from voting
               In the primary.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas




                                      Tom I; MaFarllng         /
                                      Assistant
TIM:jl
APPROVED:
OPINIONCOMMITPEG
(tea. P. Blackburn;   Chairman
W. E. Allen
Jack Goodman
Leonard Passmore
REVISWEDFOR THJ3ATTORNEY      QENERAL
BY:
    W. V. Geppert
         .                    .




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