March-April 2007

The right of succession

New judges began presiding over more than 40 courts in Dallas County on January 1, 2007, as a result of November’s election, newly created courts, and others vacated for one reason or another.

Almost immediately after the election, questions arose over whether the incumbent appointees could continue to sit and, furthermore, when the successful candidates were entitled to assume their judgeships. This confusion and uncertainty stemmed from language in the Texas Constitution which provides that appointees serve “until the next succeeding general election.”1 In at least one instance, attorneys sought recusal or disqualification of an incumbent judge, arguing a lack of authority to preside over cases.

May incumbent judges continue to preside following an election ouster and, if so, when does their tenure end?

When may the newly elected successor judges wield the gavel and wear the robe?

Does it matter whether an incumbent gubernatorial appointee was appointed to a newly created bench or to an established bench?

The answers to these questions require reconciling provisions in the Texas Constitution, Election Code, Government Code, Attorney General Opinions, and caselaw. In Texas, the regular term for state and county office holders begins January 1.2 Persons elected to such regular terms are required to qualify and assume their duties on, or as soon as possible after, January 1 of the year following their election.3 Such terms of office cannot begin before that date, and newly elected officials cannot claim any part of the previous term. “Any other conclusion would make the beginning of a term of office depend on the will of the electee rather than the will of the electors.”4

In the case of incumbents who were gubernatorial appointees, vacancies are filled by the governor “until the next general election.”5 If followed literally, this language would result in benches being vacant from the time of the election until January 1. To avoid an absurd and clearly unintended result and to preserve the “orderly process of government,” the Texas Supreme Court has read this provision in conjunction with another constitutional provision, article XVI, §17, which requires officers to “continue to perform the duties of their offices until their successors shall be duly qualified.”6 When reconciled, these authorities make clear that ousted incumbents do not depart immediately following the election but rather continue to hold over until their successors are chosen and qualify. Successful candidates cannot qualify before January 1, 2007, because there is “no mandate by election or otherwise to do so.”7

While all regular terms of office begin on the first day of January following the general election, the winner in a race to complete an unexpired term may assume office at once. In those instances, the successful candidate “is entitled to qualify for and assume the duties of the office immediately and shall take office as soon as possible after receipt of the certificate of the election.”8

Despite the long-standing rule enunciated by the Texas Supreme Court in the Sanders case, issues concerning the timely succession of successful candidates continue to perplex office holders and have resulted in numerous opinions by various attorneys general, all of which follow the analysis in Sanders.9

In short, successful judicial candidates who ran for a full four-year term have no “legal right nor color of legal right” to the judgeship prior to January 1 of the term of office they were seeking. “That is what [they] asked for and that is what [they] got….”10 The electorate voted them in for a four-year term and no more.


1 Article IV, §12 of the Texas Constitution provides that “[a]ppointments to vacancies in offices elective by the people shall only continue until the next general election.” Tex. Const. art. IV, §12 (g).
2 §601.003 of the Government Code provides that “[t]he regular term of an elective state, district, county, or precinct office begins on January 1 of the year following the general election for state and county officers.” Tex. Gov’t Code §601.003(a).
3 §601.003 of the Government Code provides that “[a] person elected to a regular term of office shall qualify and assume the duties of the office on, or as soon, as possible after, January 1 of the year following the person’s election.” Tex. Gov’t Code §601.003(b).
4 Ex parte Sanders, 215 S.W. 2d 325, 326 (Tex. 1948).
5 Tex. Const. art. V, §28.
6 Tex. Const. art. XVI §17.
7 Ex Parte Sanders at 326.
8 Tex. Gov’t Code §601.004.
9 See e.g., Op. Tex. Att’y Gen. No. GA-023 (2004) (elected sheriff does not assume office until January 1 of succeeding year); Op. Tex. Att’y Gen. GA-0263 (2004) (incumbent sheriff remains until January 1); Op. Tex. Att’y Gen. JM-579 (1986) (elected JP assumes duties on January 1 following election); Op. Tex. Att’y Gen. No. MW-521 (1982) (incumbent appointee to newly created district court bench continues until successor duly qualifies on January 1); Op. Tex. Att’y Gen. GA-0263 (2004) (appointee sheriff continues until successor qualifies on January 1 following election); Op. Tex. Atty. Gen. M-742 (1970) (appointed JP holds position until January 1 of following year).
10 Ex parte Sanders at 326 (Tex. 1948).