When does a sheriff elected to fill an unexpired term take office?

Plain-English summary

Robert H. Trapp, the San Jacinto County District Attorney, asked the Attorney General a timing question about the office of sheriff. In January 2013, the county sheriff died less than a week into a new four-year term, a term that ran from January 1, 2013 through December 31, 2016. The county commissioners court appointed a replacement to serve as sheriff until the next general election, which was held in November 2014. The appointed sheriff then lost in the primary, and someone else won the November 2014 election. The question was whether that newly elected sheriff could take office right after the election, in November 2014, or had to wait until January 1, 2015, with the appointed incumbent staying on until then.

The AG explained that the answer turns on a single distinction in the Government Code: whether the 2014 winner was elected to a regular four-year term or to fill the remainder of an unexpired term. A person elected to a regular term assumes office on or as soon as possible after January 1 of the following year (Gov't Code § 601.003). A person elected to an unexpired term, by contrast, may qualify and assume the office immediately, and takes office as soon as possible after receiving the certificate of election (Gov't Code § 601.004).

Working through chapter 202 of the Election Code, the AG concluded this was an unexpired-term election. The original term still had time left on it: it did not end until December 31, 2016, so after the November 2014 election the term continued into the next year and beyond. The vacancy had also occurred more than 74 days before the 2014 general election, which was the next-to-last even-numbered year of the term, so under section 202.002(a) the remainder of the unexpired term was filled at that election. Because the 2014 winner was elected to the unexpired term, section 601.004 applied, and the AG concluded the newly elected sheriff was entitled to qualify for and assume office as soon as possible after receiving the certificate of election in November 2014.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The newly elected successor sheriff (as the opinion described it): The opinion described a sheriff elected in 2014 to fill the remainder of an unexpired term as entitled to qualify for and assume the office as soon as possible after receiving the certificate of election, rather than waiting until January 1 of the following year.

The appointed incumbent and the commissioners court (as the opinion described it): The opinion described the commissioners court as having appointed a person to hold the office only "until the next general election." Once the unexpired-term election produced a winner, the opinion treated that winner as entitled to take office promptly, not at year's end.

Election officials handling the certificate of election (as the opinion described it): The opinion described the certificate of election as the trigger for an unexpired-term officeholder to assume the office, and noted that the certificate states whether the election was "to an unexpired term."

District and county attorneys advising on these timing questions (as the opinion described it): The opinion laid out the test for sorting a regular term from an unexpired term: whether the existing term continues into the next year, and whether the vacancy arose on or before the 74th day before the general election in the next-to-last even-numbered year of the term.

Common questions

A sheriff was elected to replace an appointed one. When does the new sheriff take office?
The AG said it depends on whether the election filled a regular term or an unexpired term. Here, because the original four-year term still had two years left, the 2014 election filled an unexpired term, so the new sheriff could take office as soon as possible after receiving the certificate of election in November 2014.

What is the difference between a regular term and an unexpired term for this purpose?
The AG explained that a person elected to a regular term takes office on or as soon as possible after January 1 of the following year, while a person elected to an unexpired term may qualify and take office immediately upon receiving the certificate of election.

Why was this treated as an unexpired-term election?
The AG pointed to two facts: the four-year term that began January 1, 2013 did not end until December 31, 2016, so it continued past the 2014 election; and the vacancy occurred more than 74 days before the 2014 general election, which fell in the next-to-last even-numbered year of the term. Under section 202.002(a) of the Election Code, that meant the remainder of the unexpired term was filled in 2014.

Did the appointed sheriff get to stay in office until January 1, 2015?
No. The AG concluded the newly elected sheriff was entitled to assume the office in November 2014, after receiving the certificate of election.

Why didn't a prior opinion about a 2005 sheriff control the answer?
The AG distinguished Opinion GA-0263, which involved a sheriff elected to a regular term beginning January 1, 2005. Because that earlier opinion dealt with a regular term and this question dealt with an unexpired term, the AG said GA-0263 was not dispositive.

Background and statutory framework

The office of county sheriff is a constitutional office with a four-year term (Tex. Const. art. V, § 23). When a vacancy occurs in the office, the commissioners court may appoint a person to hold the office until the next general election (Tex. Loc. Gov't Code Ann. § 87.041(a)(4), (c)).

Two provisions of the Government Code set the date a person elected to the office takes over. The regular term of an elective county office begins on January 1 of the year following the general election, and a person elected to a regular term assumes the duties on, or as soon as possible after, that January 1 (Tex. Gov't Code Ann. § 601.003(a)-(b)). A person elected to an unexpired term, however, is entitled to qualify for and assume the duties of the office immediately and takes office as soon as possible after receiving the certificate of election (Tex. Gov't Code Ann. § 601.004). The certificate of election is the document a local canvassing authority prepares for each elected candidate, and it states whether the election was to an unexpired term (Tex. Elec. Code Ann. § 67.016(a), (c)).

Chapter 202 of the Election Code governs elections to fill vacancies in elective state and county offices (Tex. Elec. Code Ann. § 202.001). Under section 202.002(a), if a vacancy occurs on or before the 74th day before the general election held in the next-to-last even-numbered year of a term, the remainder of the unexpired term is filled at the next general election (Tex. Elec. Code Ann. § 202.002(a)). The AG read a prior opinion to confirm that if the existing term continues into the next year, the general-election winner has been elected to the unexpired term (Tex. Att'y Gen. Op. No. JM-0579 (1986)). Applying these provisions to the San Jacinto County facts, the AG concluded the 2014 election filled the unexpired term, so the newly elected sheriff could assume office under section 601.004 upon receiving the certificate of election. The AG distinguished an earlier opinion, GA-0263, on the ground that it involved a sheriff elected to a regular term (Tex. Att'y Gen. Op. No. GA-0263 (2004)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 23 (office of county sheriff)
• Tex. Loc. Gov't Code Ann. § 87.041(a)(4), (c) (commissioners court fills a vacancy until the next general election)
• Tex. Gov't Code Ann. § 601.003(a)-(b) (commencement of a regular term)
• Tex. Gov't Code Ann. § 601.004 (commencement of an unexpired term)
• Tex. Elec. Code Ann. § 202.001 (elections to fill vacancies)
• Tex. Elec. Code Ann. § 202.002(a) (74-day rule for filling an unexpired term)
• Tex. Elec. Code Ann. § 67.016(a), (c) (certificate of election)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. No. JM-0579 (1986)
• Tex. Att'y Gen. Op. No. GA-0263 (2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0013
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0013.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 31, 2015

The Honorable Robert H. Trapp Opinion No. KP-0013
San Jacinto County District Attorney
1 State Highway 150, Room 21 Re: Commencement of term of office of a
Coldspring, Texas 77331-0403 person elected sheriff as a successor to an
individual who was appointed to fill a vacancy
in that office (RQ-1227-GA)

Dear Mr. Trapp:

You ask about the date on which a newly-elected sheriff should take office as successor to a person who was appointed to fill a vacancy in the office. [1] You tell us that in January of 2013 the sheriff of San Jacinto County passed away less than a week into his new term. Request Letter at 1. You state that the county commissioners court then appointed a replacement to serve as sheriff until a new sheriff could be elected at the next general election in 2014. Id.; see TEX. LOC. GOV'T CODE ANN. § 87.041(a)(4), (c) (West Supp. 2014) (authorizing a commissioners court to fill vacancies in certain county offices, including that of sheriff, by appointing a person to "hold office until the next general election"). You explain that the appointed sheriff was defeated in the primary election leading up to the November 2014 general election. Request Letter at 1. The issue is whether the newly-elected sheriff was entitled to assume office in November 2014, upon receiving a certificate of election [2] or on January 1, 2015, with the appointed incumbent remaining in office until that date. Id. at 1-2.

The term of office of a county sheriff is four years. See TEX. CONST. art. V, § 23 (creating the office of county sheriff). The regular term of an elective county office, including that of sheriff, "begins on January 1 of the year following the general election for state and county officers." TEX. GOV'T CODE ANN. § 601.003(a) (West 2012). Likewise, the person elected to a regular term of office "assume[s] the duties of the office on, or as soon as possible after, January 1 of the year following the person's election." Id. § 601.003(b). By contrast, a person elected "to an unexpired term of an office is entitled to qualify for and assume the duties of the office immediately and shall take office as soon as possible after the receipt of the certificate of election." Id. § 601.004. Thus, the answer to your question depends on whether the new sheriff of San Jacinto County was elected to begin a regular four-year term or to fill the remainder of an unexpired one.

Chapter 202 of the Election Code governs elections to fill vacancies in elective state and county offices. TEX. ELEC. CODE ANN. § 202.001 (West 2010). Section 202.002 provides that "[i]f a vacancy occurs on or before the 74th day before the general election for state and county officers held in the next-to-last even-numbered year of a term of office, the remainder of the unexpired term shall be filled at the next general election for state and county officers." Id. § 202.002(a). A previous opinion of this office addressing a similar question further clarifies that "[i]f 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." Tex. Att'y Gen. Op. No. JM-0579 (1986) at 2 (considering the statutory predecessor to sections 601.003 and 601.004 of the Government Code).

As you have stated, the vacancy in the office of San Jacinto County Sheriff occurred less than a week into a four-year term that began on January 1, 2013, and will end on December 31, 2016. Request Letter at 1. Thus, after the November 2014 general election the term of office continued into the next year and beyond. Furthermore, the original vacancy occurred more than 74 days before the general election in 2014, the next-to-last even-numbered year in the current term. See TEX. ELEC. CODE ANN. § 202.002(a) (West 2010). Therefore, the election held in 2014 for San Jacinto County Sheriff was for the remainder of an unexpired term, and pursuant to section 601.004 of the Government Code, the newly-elected sheriff was entitled to qualify for and assume office as soon as possible after receiving the certificate of election in November 2014. [3]

SUMMARY

The election for San Jacinto County Sheriff held in 2014 was to fill a vacancy for the remainder of an unexpired term. Therefore, pursuant to section 601.004 of the Government Code, the newly elected sheriff was entitled to qualify for and assume office as soon as possible after receiving the certificate of election in November 2014.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Robert H. Trapp, San Jacinto Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 14, 2014), http://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] A certificate of election is prepared for each candidate elected to an office for which the official result is determined by a canvassing of results by a local canvassing authority. TEX. ELEC. CODE ANN. § 67.016(a) (West 2010). The certificate must contain certain information such as the "candidate's name," the "office to which the candidate is elected," and a "statement of election to an unexpired term," if applicable. Id. § 67.016(c).

[3] You suggest that Attorney General Opinion GA-0263 may be dispositive. See Request Letter at 2. Opinion GA-0263 involved a sheriff elected as successor to a person who had been appointed to fill a vacancy in that office. Tex. Att'y Gen. Op. No. GA-0263 (2004) at 1. Because the sheriff had been elected in 2004 "for the four-year term beginning on January 1, 2005," this office concluded that the sheriff was entitled to assume the office on January 1, 2005, pursuant to section 601.003 of the Government Code. Id. at 1-3. Attorney General Opinion GA-0263, however, is distinguishable from the situation you describe because that opinion involved the election of a sheriff to a regular term.