Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable E. A. Hod,+ys
County Auditor
Wllllamson County
Oaorgetown, Texas
Baar Sir:
a.businass although
tsad'fti in another
on the above stated
question has be
queliry as a
justice preoinat
a bualaess although
an&her 3ustios Pre-
Ggorgetown, Justloe FrecFnat Ho.
married and owns a hose hers and
home atte; business hours, his
s to be performd in Justioe Prfminct
Ho. &, in whloh precinot his plaoe OS busi-
ness Is looated."
Artiolss 2927 and 8928, Revlssd Civil Statutes,
read s8 tallows:
Honorable H. A. Hodges, Page 2
*Artiole 2927. No person &all be ‘&igb
ble to~any State, county, preoiaot, or muni%-
ipal orrloe in this State uhlees ha shall be
eligible.to hold offloe under the Constitution
of this state, and unless he shall have resided
in this.State for the period of twelvd laonthe
and~Lix:mnths in the oounty, preolnat, or
mmiolpality, in whioh he offera himelf a6 a
candidate, next preoe.ding any general or 8pe-
ala1 eleotion, and shall have been an aotual
bona fide aitixen of said oounty, preolnot,
or mmioipallty for more than six mntha.
lie person inellgible to hold oiiioe &.all
ever hare his name plaoed upon the ballot at
any general or apeoial eleotion, or at any
primary eleotion where oandidates are raleoted
under~primary elsation laws or this Gtata;
and no such insllgible oaudidats shall ever
be toted upon, nor have votes oountsd Sor
him, at any such general, apeoial, or prima’ry
eleotion.
“Artlole 2928. Neither the &rotary
of State, nor any oounty judge of this State,
nor anr other authority authorized to is8u.e
oertiiloatss, shall ieeue any certifloatas
or eleotion or appointaent to any person
eleoted or appointed to any oi’floe in this
State, who 1s not eligible to bald euoh offio~
under the Constitution of this State and under
the above artlolel. and the name o? no inelig-
ible person, under the tinatitution and law6
ot.this Ytats, shall be oertitied by any
party, oommlttee, or any authority authorized
to have the names of oandidates plaoed upon
the primary ballot8 at any primary eleotion
in this State; and the name OS no ineligible
oandidate under the Constitution and lnwa of
this State shall be plaoed upon tho’ballot
ot any general or epeoial elootlon by any
:uthorlty wbo:oseduty it is to plaar name6 of
aandidatea upon otfioial ballotr.*
Artiole 6879a, Rsv-leed, Civil StatUteE, raado a8 tab
lows:
Honorable H. A. Hodges, Page 5
*Sea. 1. The duly eleoted oonstable in
each justioe preoinot having a olty or town
of less than eight thousand (8,000) population
aooording to the preoedlag Federal Census may
appcint one (1) Deputy and no more; and eaoh
Justloe Preoinot having a oity or town of
eight,thousand (8,000) and le:rs than forty
thousand (40,000). population aooordlng to the
preoedlng Federal Census may appoint two (2)
Deputies and no more; nnd in eaoh Justioe
Preoinot having c town or olty of forty
thousand (40,000) population or more aooord-
lug to :the reoedlng Federal Census nay ap-
point 3cive s 5) Deputies and no more, and eaoh
and every inatanoa said Deputy Constables
shall quality us requir.ed of Deputy 8herlrft3.
Tea. 2. Men the Constable in eaoh and
every instanoe uamed and desorlbed in tha pra-
aediug seotion of this Aot shall desira to
make appointment OS a Deputy or Deputies, as
the oasa may be, said Constable shall first
make written applloation to the Conmlsaloners~
aourt or his County showing .that It la naoeu-
sary for auoh Constable to have the Deputy or
Deputies requested i&order to properly handle
the business of hi8 office originating in the
Preoinot in which euoh Conetable has been
eleoted, giving the name of eaoh proposed ap-
poiutea; and lf the Commlssionerr* Court shall
find that the Qonstable Is in need of the
Deputy or Deputies requested to handle ths
business originating in his Preolnot, then
and in that event, and in that ev6,nt only,
the~Comnissionerel Court shall approve and oon-
firm ths appointment of the Deputy or Deputies
provided by this Act.
*Sea. 3. Aay person who aerve8 as a
Deputy Coustablb. without the provisions here-
of having been oonrplied with relative to his
appointment or any Constabls who issues a
DaputpshSp without the oonssnt and approval
of the Co:~elssionere* Court shall br fined not
less than Fifty Dollars (#SO+OO) nor mare than
One Thousand Dollars (#.1,000~00)~”
- 499
Honorable H. A. Hodges, Page 4
ite quote iron the oaae of Murray et al v. State,
67 s. 7.. (2) 274, as follows:
"Deputy Constables are provided for
by law and qualify In the same manner aa
Deputy Sheriffs. Artidle 6869, Revised
Civil Statutes, 1925; iUtiOle 6809, Ae-
vised Statutes, 1925, as amended by Aots
of 1929~ (1st Called Session) ohapter 113
(Vernon's Annotated Clvii Statutes, Artl-
cle
. .. 6869). Tb?y nre also
- .. vested by law _
witn some portion or tne sovereign runotions
of' the government, to be exeroised by thea
for the benefit of the publio. They are
publia offioers clothed with the power and
authority of their prinoipals. wils.on v.
State, 117 Ter. Cr. Rep. 63, 36 S. W. .(e)
733."
In the oase of Brown v. f&seeks, 96 S. Vi. (8) 039, it
was held that the Concuinsioners * Court has no jurlsdiotion to
add to or take from qualifioatlons fixed by the Lsgleluture
for oandidatss for office or oonstable. Therefore, It would
naturally follow that the Commissioners1 Court has no author-
ity to add to or take from the qualifioatlons rlxed by the
Legislature for a Deputy Constable.
Under the above QUOteA Statutes no person 1s eligi-
ble to any state, oounty, preoinot or munloipal office unless
he shall have resided in the state for the period of twelve
months and six montha in the oounty, preoinot or aunibipality
in whioh he offers to serve 8~ suoh offioer.
Artiole 2958, Revised Civil Statutes, provides, a-
mong other things, that the reeidenae of a married man is
where his wire resldea.
You are respectfully advised that it .is the opinion
of this department/that a man cannot legally qualify as a dop-
uty oonstable for a justice preolnot in whioh he does not re-
side.
Honorsble IL A. Hodges, Page 5
Trusting that the foregoing answera your Inquiry,
we remaln
Yours very truly
AT'lVRi?fl GENERALOF !I'EXAS
Ardell Williams
Assistant