Commissioners ponder constable vacancy

Donley County Commissioners accepted the resignation of Precinct 1&2 Constable Jimmy Swinney during their Monday meeting, but they now face a new decision about the position – fill it or leave it vacant.

County Attorney Pro-tem Kaye Messer addressed the issue and said commissioners are under no legal obligation to fill the vacancy, although not doing so would open the possibility that Swinney would remain constable.

A “hold over” clause in state law provides that an otherwise qualified person continues to stay in office until their successor takes over, Messer said. But she advised the commissioners’ court the chance of Swinney holding on to his office would be slim since he is, by law, not qualified to hold the office.

Statue requires constables to become licensed peace officers within 270 days of taking office. If they don’t become certified, they forfeit their office. Swinney turned in his letter of resignation last week after he failed the state exam to become certified within the allotted time.

Messer told the court that if Swinney tried to perform the duties of constable now, he would be impersonating a peace officer.

“I don’t think his attorney is going to advise him to break the law,” Messer said.

Commissioners also are looking ahead and must try to anticipate the will of Texas voters in 2002. A proposed state constitutional amendment on the general election ballot next year, if approved, would allow counties to declare a constable’s position dormant if it has been vacant for seven years or more.

Messer told the court the language in the amendment provides for a constable being unqualified for office. Since the Precinct 1&2 Constable was a vacant position from 1969 until this year and since Swinney did not become qualified, Donley County would have “much more” than the required seven years, she said.

But if commissioners now fill the vacancy, it would have to be with a certified officer, and that would restart the clock, she said.