THE ATTORNEY GENEMAL
OF TEXAS
W’ILL
ATl-OR-
WILSON
GENERAL
June 25, 1962
Honorable’ John Lawhon Opinion No. WW-1359
County Attorney
Denton County Courthouse Re: Whether a Justice of the Peace,
Denton, Texas Precinct
. . --. 1, Place
. . 1, vacated
nis orrlce wnen ne announcea
his candidacy for Justice of
the Peace, Precinct 1, Place
2; appointment to unexpired
term; being the Democratic nomi-
nee for both Place 1 and Place
2 at the same time on the Gener-
al Election ballot; and holding
Dear Mr. Dawhon: both offices, If elected to both,
Your letter reads in part as follows:
“All of the City of Denton lies In
Justice of the Peace Precinct No. One. The
city contains more than 8,000 Inhabitants,
and therefore, Justice of the Peace Precinct
No. One has two Justices of the Peace, deslg-
nated Place One and Plac,e Two In accordance
with provisions of Article 2375 of the Revls-
ed Civil Statutes’ of Texas.
“The office of Justice of the Peace is a
civil office of emolument and operates in this
county on a fee basis. Jim George was the duly
elected and acting Justice of the Peace, Pre-
cinct No. One, Place One, and elected for a
four-year term in November, 1960. W. A. Riggs
was the duly elected and acting Justice of the
Peace, Precinct No. One, Place Two, and was
elected for a four-year term In November, 1958.
“On or before the 5th day of February, 1962,
Jim George announced his candidacy and filed an
application with the County Democratic Chairman
for a place on the ballot as Justice of the Peace.
Precinct No. One, Place One and Place Two. On or
before the 5th day of February, 1962, W. A. Riggs
announced his candidacy and filed an application
with the County Democratic Chairman for a place
on the ballot as Justice of the Peace, Precinct
No. One, Place Two.
Hon. John Lawhon, Page 2 @W-13%)
the County Democratic Executive
Commitie;! placed on the primary ballot the
following:
For Justice of the Peace, Precinct One,
Place One--
JIM GEORGE
For Justice of the Peace, Precinct One,
Place Two--
JIM GEORGE
W.A. RIGGS
“The County Democratic Executive Com-
mittee has certified to the County Clerk that
Jim George won nomination and is the nominee
for Justice of the Peace, Precinct No. One,
Place One; and further that he received a
majority of the votes cast In the election
for Justice of the Peace, Precinct No. One,
Place Two, and la also the Nominee for said
office. It now appears that the name of
Jim George will appear upon the November
ballot as the nominee for Place One and Place
TWO."
After stating the above facts, you have asked the follow-
ing questions:
“1. When Jim George became an announced
candidate for Justice of the Peace, Precinct
No. One, Place Two, did he then and there va-
cate his office of Place One?
“2. If your answer to Question No. 1
la that Jim George did vacate the office of
Place One when he became a candidate for
Place Two, can he now be appointed to the
office of Place One to fill out the unexpired
portion of the term of said office.
“3. SFnce the County Democratic Execu-
tive Committee has certified the name of Jim
George as the nominee for both Place One and
Place Two, can the name of Jim George appear
upon the ballot for the Qeneral Election In
November, 1962, as the nominee for said two
separate offices?
.
.’ .
Hon. John Iawhon, Page 3 (Ww-1359)
"4. If your answer to Question No. 3 is
that the name of Jim George can be placed
upon the November General Election ballot
as a candidate for both Place One and Place
Two, can he, in the event that he is elected
to both offfceq he sworn, commissioned, and
hold both said offices at the same time?"
'.
In response to a telephone inquiry from this office, you
have furnished us with the following information: That Judge
Jim George filed his application for a place on the ballot as
a candidate for Justice of the Peace, Precinct No. 1, Place 1,
on January 18, 1962, and that he filed for Place 2 on February
1, 1962.
Section 18, Articie V, Texas Constitution, reads In part
as follows:
"Each organized county in the State . . .
shall be divided from time to time, for the
convenience of the people, Into precincts, not
less than four and not more than eight. Dlvl-
aions shall be made by the Commisalonera Court
provided for by this Constitution. In each pre-
cinct there shall be elected one 3ustice of the
Peace and one Constable, each of whom shall hold
his office for four years and until his successor
shall be elected and qualified; provided that In
any precinct in which there may be a city of
8,000 or more inhabitants, there shall be elected
two Justices of the Peace. . . ,"
This office held In Attorney General's Opinion No.
WW-1251 that even though a Justice Precinct may contain within
its boundaries a town having a population in excess of 8,000
inhabitants, it need not have more than one Justice of the Peace,
if the Commissioners Court decides that It la not needed "for
the convenience of the people," and cited Meredith v. Sharp, 256
S.W.2d 870 (Civ.App. 1953, error ref. n.r.e.). All of the City
of Denton lies within Justice of the Peace Precinct No. One,
and the City of Denton had a population of 26,844, according to
the 1960 Federal Census, as reported in the Texas Almanac for
lg61-1962. Since It la the will of the Comm‘issioners Court that
there be two Justices of the Peace in Precinct No. One In Denton
County, these two places are designated Place One and Place Two.
Where any precinct office la of such a nature that two
or more persons hold such office, with the result that candl-
dates file for "Place No. 1," "Place No. 2," etc., they will
Hon. John Lawhon, Page 4 (WW-1359)
be elected to overlapping four-year terms. The odd numbered
places are elected at one election, and the even numbered
places are elected at the election held two years thereafter.
Section 65, Article XVI, Texas Constitution. This provision of
the Texas Constitution also provides in part:
II . if any of the officers named here-
in fihia'lncludes Justices of the Peace shall
announce their candicacy in any Genera r7, Spe-
cial or Primary Election,,for any office of
profit or trust under the laws of this State or
the United States other than the office then
held, at any time when the unexpired term of
the office then held shall exceed one (1) year,
such announcement or such candidacy shall constl-
tute an automatic resignation of the office then
held, and the vacancy thereby created shall be
filled pursuant to law In the same manner as other
vacancies for such office are filled."
When Justice of the Peace Jim George filed his application
for a place on the ballot as a candidate for the office of Jus-
tice of the Peace, Precinct No. 1, Place 2, then under the plain
language of Section 65, Article XVI, Texas Constitution, such
announcement constituted "an automatic resignation of the office
then held," to-wit, the office of Justice of ,the Peace, Precinct
1, Place 1. His announcement came at a time "when the unexpired
term of the office then held" exceeded one (1) year. See Attor-
ney General's Opinion No. WW-1253. The vacancy thus created in
the office of Justice of the Peace, Precinct No. 1, Place 1,
has not been filled. When the Commlaaloners Court selects a auc-
ceaaor to the Honorable Jim George and such successor has quali-
fied and has taken the oath of office, such successor will be the
Justice of the Peace, Precinct No. 1, Place 1, until the next
General Election. Section 28, Article V, Texas Constitution. In
answer to your first question, we hold that the Honorable Jim
George automatically resigned from his office of Justice of the
Peace, Precinct No. 1, Place 1, when he announced his candidacy
for the office of Justice of the Peace, Precinct No. 1, Place 2.
In answer to your second question , we hold that the Honor-
able Jim George is not eligible for appointment to fill the
vacancy in office which he created when he resigned as Justice
of the Peace, Precinct No. 1, Place 1. See Attorney General's
Opinion No. WW-788.
At the time Judge George filed for Place 1, on January
1.8,1962, there was no vacancy in Place 1 to run for in 1962.
. .
. .
Hon. John Lawhon, page 5 (WW-1359)
Judge George occupied that post himself. His term of office
did not expire until December 31, 1964. Judge George had not
yet resigned from Place 1 , when he announced on January 18,
1962. The application for a place on the primary ballot to
run for the unexpired term of Place 1 should have been refused.
Elections held in 1962 are for the purpose of filling offices which
commence on January 1, 1963, except in the case of races to fill:
out unexpired terms; and no unexplred term existed on January 18,
1962, when Judge George filed for then office. The vacancy occurred
on February 1, 1962, about 14 days later. At the time Judge
George filed his application to be a candidate for Place 1, no
vacancy existed; therefore, his announc.ement was void, After he
created the vacancy in Place 1 on February 1, 1962, by announcing
for Place 2, he did not thereafter announce his candidacy for his
own unexpired term. Since there was no authority in law to place
the name of Judge George on the primary ballot, In view of the
fact that he never announced afte.r the vacancy was created, the
purported nomination of Judge George in the primary was void, and
there is no Democratic nominee for Justice of the Peace, Precinct
No, 1, Place 1.
Art. 6.01, Texas Election Code, reads in part as follows:
II The name of no candidate shall ap-
pear more than once upon the official ballot,
except (a) as a~candldate for two (2) or more
offices permitted by the Constltutlon’to be held
by the same person; or (b) when a candidate has
been duly nominated ~for the office of President
or Vice-President of the United States and also
for an office refulring a state-wide vote for
election. , . .
Under Article 6.01, Election Code, the Honorable Jim George
would not be permitted to have his name printed twice on the same
ballot for two different offices unless he came within exception
“(a)” in said statute. Section 40 of Article,XV, Texas Constltu-
tlon, provides in part:
“No person shall hold or exercise, at
the same time, more than one Civil Office
of emolument, except of that of Justice of
Peace, County Commissioner, Notary Public
and Postmaster, Officer of the National Guard,
the National Guard Reserve, and the Officers
Reserve Corps of the United States and en-
listed men of the National Ward, the National
Guard Reserve, and the Organized Reserves of
the United States, and retired officers of
. . .
Hon. John Lawhon, page 6 (NW-1359)
the United States Army, Navy, and Marine
Corps, and rstlred warrant officer-a, and
retired enlisted men of the United States
Army, Navy, and Marine Corps, unless other-
wise specially provided herein. . . .'
There have been a number of cases and Attorney General's
Opinions which hold that one person may hold one of the enumerated
offices in Section 40, Article XVI, Texas Constitution, and some
other office of a different character, so long as the two offices
are not Incompatible. But we have no case which holds that one
person may hold the two offices of Justice of the Peace within
the same precinct at the same time. Section 18, Article V, Texas
Constitution, states that in Justice precincts in which there may
be a city of 8,000 Inhabitants, "there shall be elected two Jus-
tices of the Peace." If Judge George could hold both offices at
the same time, It would not comply with the requirement of "two"
Justices of the Peace. The number of Justices of the Peace in
Precinct 1 may be reduced to a single Justice of the Peace, but
this can only be done by the Commissioners Court. Merldlth v.
Since the Commissioners Court of Denton County
een fit so to do, we must construe Sec. 40, Art. XVI,
and Sec. 18, Art. V, Texas Constitution, together, and hold that
while a Justice of the Peace may hold some other office not in-
compatible with the office of Justice of the Peace, he may not
hold the offices of Justice of the Peace, Precinct 1, Place 1
and Justice of the Peace, Precinct 1, Place 2 at the ssme time.
This office has held in Attorney General's Opinion No.
V-1529 that the county clerk acts in ministerial capacity In re-
ceiving certificates of nomination and In placing names of
nominees on the general election ballot. That opinion also
held that where a certificate is regular on Its face, the county
clerk does not have the duty or authority to determine questions
of irregularity or illegality In the nomination which would depend
upon an ascertainment and determination of extraneous facts.
Nevertheless, in this situation the clerk Is under a plain command
of Art. 6.01, Election Code, that no candidate's name may appear
twice on the same ballot, with certain exceptions which we now
hold are not applicable. The clerk does not have to rely on
extraneous facts to determine with his own eyes that the certi-
fication which he received from the County Chairman of the Demo-
cratic Party bears the name of the Honorable Jim George as a
candidate for two different offices.
We answer your third question by holding that the name
of the Honorable Jim George may not appear on the General
Election ballot as a nominee for Justice of the Peace, Precinct
1, Place 1 and for Justice of the Peace, Precinct 1, Place 2, at
. .
. . .
Hon. John Lawhon, Page 7 (WW-13%)
the same time. We answer your fcurth question by holding
that Judge George may not qualify and hold both places
at the same time. If, perchance, he should be elected in
the General Election to Place 2 as the Democratic nominee, and
In the same election should be elected to Place 1 by means of
write-in votes, Judge George would then be elected to both
places, but he could only qualify and hold one of the offices.
S U M M A R~,Y
A Justice of the Peace for Precinct No. 1,
Place 1 automatically resigned from such office
when he announced his candidacy for Justice of
the Peace, Precinct 1, Place 2, there being more
than one year left in his term of office In Place
1 at the time he announced his candidacy for Place
2. Sec. 65, Art. XVI, Texas Constitution.
A Justice of the Peace who automatically re-
signed his office by announcing his candidacy for
another office, while there was more than one
year left In the term of office which he vacated,.
may not be appointed to serve until the next
general election in the office he vacated. At-
torney General's Opinion No. W-788.
A candidate's name may not appear on the
General Election ballot as a candidate for the
office of Justice of the Peace, Precinct 1, Place
1 and as a candidate for the office of Justice
of the Peace, Precinct 1, Place 2. Art’. 6.01,
Election Code. Section 18, Art. V, Texas Consti-
tution.
One person may not hold both the office of
Justice of the Peace, Precinct 1, Place 1 and
the office of Justice of the Peace, Precinct 1,
Place 2 at the same time. Section 18, Art. V,
Texas Constitution.
Very truly yours,
WILL WILSON
Attorney General of Texas
BY
REF:rk:ms Assistant
Hon. John L$whon, page 8 (Ww-1359)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
REVIEWEDFOR THE ATTORNEYGENERAL
By: Leonard Passmore
Untitled Texas Attorney General Opinion
Combined Opinion