Untitled Texas Attorney General Opinion

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 . . .