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TX JM-579 November 24, 1986

When does a newly elected justice of the peace actually take office if the seat had been filled by appointment?

Short answer: It depends on the term. JM-579 concluded that a justice of the peace elected to a new term takes office on the following January 1, but one elected to finish an unexpired term may qualify and take office as soon as the election results are certified.

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This page answers the general question as of 1986. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Currency note: this opinion is from 1986
Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. The opinion was issued in 1986 and construed law as it then stood; verify current law before relying on it.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Texas AG Opinion JM-579: When Elected JP Takes Office

Plain-English summary

The Webb County Attorney asked when a person elected justice of the peace in the November general election should actually take office, in a situation where the sitting justice had been appointed to fill a vacancy. Did the winner start immediately after being declared the winner, or on January 1 after being sworn in? The AG's answer depended on which kind of term the winner had been elected to. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Under article 17, V.T.C.S., regular terms for county and precinct offices begin on January 1 after the general election, and someone elected to a regular new term cannot qualify or take office before that date. But someone elected to finish an unexpired term takes office as soon as he can qualify after the election, meaning as soon as the results are canvassed and a certificate of election issues. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Until the newly elected justice qualifies, the appointed incumbent keeps serving. The Texas Constitution's holdover provision, article XVI, section 17, requires officers to keep performing their duties until their successors are duly qualified, so there is no gap in the office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does a newly elected JP take office the moment the votes are counted?

Only if elected to an unexpired term. JM-579 concluded that a justice elected to finish an unexpired term takes office as soon as the results are certified, while a justice elected to a new regular term takes office on the following January 1. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Who serves in the meantime?

The appointed incumbent. Under the constitution's holdover provision, the sitting justice continues to perform the office's duties from the general election until the newly elected justice qualifies. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

How do you tell which kind of term the winner got?

By whether the current term ends on December 31 after the general election or runs into the next year. If it ends December 31, the winner starts January 1; if it continues, the winner was elected to the unexpired term and may take office as soon as certified. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Can a JP elected to a new term start early to fill a gap?

No. The AG noted that a candidate elected to a new term has no right to serve any part of the term ending December 31, citing older Texas decisions on that point. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Background and statutory framework

Article 2355, V.T.C.S., let the commissioners court fill a vacancy in the office of justice of the peace, with the appointee holding "until the next general election," and article V, section 28 of the constitution said the same. Article 17, V.T.C.S., then set the general rule that elected county and precinct officers take their regular terms starting January 1, while those elected to unexpired terms take office as soon as they can qualify after the election. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

The AG reconciled these provisions using Attorney General Opinion M-742 (1970), which explained that the "until the next general election" language was meant to get the office filled by election at the earliest opportunity, not to vacate it on election day. It cited Ex parte Sanders and Anderson v. Parsley for the rule that a person elected to a new term has no right to serve the portion of the term ending December 31, pointed to the holdover provision in article XVI, section 17, and cited the Election Code canvassing and certificate provisions, sections 67.001 through 67.006 and section 67.016. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0579.pdf

Constitution and statutes:

  • V.T.C.S. art. 17
  • V.T.C.S. art. 2355
  • Tex. Const. art. V, § 28
  • Tex. Const. art. XVI, § 17 (holdover provision)
  • Elec. Code §§ 67.001-67.006
  • Elec. Code § 67.016

Cases:

  • Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948)
  • Anderson v. Parsley, 37 S.W.2d 358 (Tex. Civ. App. - Fort Worth 1931, writ ref'd)

Prior opinions:

  • Attorney General Opinion M-742 (1970)
  • Attorney General Opinion MW-521 (1982)
  • Attorney General Opinion JM-558 (1986)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

November 24, 1986

Honorable Richard G. Morales, Sr.
Webb County Attorney
1104 Victoria
Laredo, Texas 78040

Opinion No. JM-579

Re: Time at which a newly elected justice of the peace takes office, when he is elected to a position previously filled by appointment

Dear Mr. Morales:

You inquire about the date when the person elected justice of the peace in the November general election should take office. You inform us that the incumbent was appointed to fill a vacancy in the office and ask whether the newly elected individual will take office on January 1, after he is sworn in, or immediately after he is declared the winner in the November general election.

Article 2355, V.T.C.S., provides that the commissioners court shall have power to fill vacancies in the office of justice of the peace, "and the person chosen shall hold office until the next general election." V.T.C.S. art. 2355; see also Tex. Const. art. V, § 28. Article 17, V.T.C.S., states more specifically when officers elected at a general election take office:

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 offices are regularly filled, and those who are elected to regular terms shall qualify and assume the duties of their respective offices on the first day of January following their . . . canvass of the results of the election at which they were elected, and they shall take office as soon thereafter as possible. (Emphasis added).

V.T.C.S. art. 17. Thus, a person elected at the general election to fill an unexpired term takes office as soon as he can qualify after the election, while a person who is elected to a new term beginning January 1 may not qualify or assume the duties of office until that date. See Attorney General Opinions MW-521 (1982); M-742 (1970).

The candidate elected to a new term has no right to serve any portion of the term which ends December 31. Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948); Anderson v. Parsley, 37 S.W.2d 358 (Tex. Civ. App. - Fort Worth 1931, writ ref'd). The appointed incumbent will in such case continue to hold the office from the general election until the newly elected justice of the peace qualifies on or after January 1. His continuance in office is required by article XVI, section 17, of the Texas Constitution, the "holdover" provision, which states that

[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.

Tex. Const. art. XVI, § 17.

Attorney General Opinion M-742 (1970) explains the apparent inconsistency between article 17, V.T.C.S., and the constitutional and statutory provisions which specify that persons appointed to a vacancy shall serve until the next general election:

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.

Attorney General Opinion M-742 at 4 (1970).

The answer to your specific question depends on whether the present term of office ends on December 31 following the November general election or continues into the next year. See generally Attorney General Opinion JM-558 (1986). If the present term of office ends on December 31, the newly elected justice of the peace should qualify and assume the duties of his office on January 1 or as soon thereafter as possible. If the present term of office continues into the next year, then the person who wins the general election has been elected to the unexpired term of the office, and he may qualify and assume the duties of office "immediately upon receiving a certificate of election. . . ." V.T.C.S. art. 17. See Elec. Code §§ 67.001-67.006 (canvassing of local election returns); § 67.016 (issuing certificate of election).

SUMMARY

Article 17, V.T.C.S., provides that a person elected to the unexpired term of the office of justice of the peace may qualify immediately upon receiving the certificate of office and shall take office as soon thereafter as possible. A person elected to a new term of justice of the peace shall qualify and assume the duties of office on the January 1 following his election or as soon thereafter as possible.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

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