Untitled Texas Attorney General Opinion ( 1952 )

April 29, 1952
Hon. Fred C. Brigman, Jr. Opinion 6 V-1437.
County Attorney
uvalde county Re: Eligibility of a person
palde, Texas who will have resided
In a commissioners8pre-
cinct for four months
on the date of the first
primary t,obe a csndi-
date for county commis-
Dear Sir: sioner.
.Youhave requested an opinion of this office
on the following question involving an interpretation
of Section 5 of the Texas Election Code (Acts 52na Leg., 'l.'?
B.S. 1951, ch.'~~&92,
p. 1097):
"1s a person who will have resided in '
a'commlssioners'precinct for four months
at the date of the first primary election
but who will have resided in that precinct
for seven months at the time of the general
election eligible to have his name placed
on the primary election ballot for the of-
fice of county commissioner?~~
Section 5 of the Election Code reads as fol-
lows:
90 person shall be eligible to any
State, county, precinct or municipal office
in ,thisState unless he shall be eligible
to hold office under the Constitutionof
this State, and unless he shall have resided
in this State for the period of twelve (12)
months and six (6) months in the county, pre-
cinct, or municipality,in which he offers
himself as a candidate,next preceding any
general or special election and shall have
been an actual.bonafide ciiiaen of said
county, precinct, or munici ality for six
(6) months. NO person inelEgible to hold
office shall ever have his name placed upon
r : ‘,?
ti! .*n Hon. Fred Cl Brigman, Jr., page 2 (v-1437)
the ballot at any general or special
election, or at any primary election
where candidatesare selectedunder
primary election laws of this State;
and no such ineligiblecandidate shall
ever be voted upon, nor have votes
counted for him at any such general,
special, or primary election. . o o"
This section is taken from Article 2927 V.C.S., and is
in Identical language except that Article 2927 required
the candidate to have been acitizen of the county, pre-
cinct, or municipalityfor "more than sizmonths,~~where-
as the present statute reads "for six months."
The question ou have presentedwas answered
in Att'y Gen. Op, o-196?T(l%O), which held that the six
months' residence and citizenshiprequirementsin Arti-
cle 2927 were referable to the general or special elec-
tion at which the officer was to be elected, and did not
refer to primary elections for the nomination of party
candidates. In the course of the opinion it was stated:
"It is observed that the term 'gen-
era1 or special election,~~only,appears
in the first sentence of the statute;
whereas, thereafter in the statute touch-
ing a different but related matter appear
the terms 'any general or special elec-
tion, or at any primary election.' Clearly,
therefore, the employment of the term 'gen-
eral or special election,:pertaining to
the six months residence and citizenship
requirementwas not intended to include
primary electlons. . . .
"It has been repeatedlyheld by this
department that, under Article 2927, supra,
apart from other necessary qualifications,
an individual is eligible to hold a public
office if he has resided in, and been a
bona fide citizen of, the county, precinct,
or municipality six months prior to the
general election or special elections fixed
by law.n,
The Legislature .in re-enactingSection 5 of
the Election Code in sub~s{antially
the same language
Hon. Fred C. Brigman, Jr., page 3 (v-1437)
used in Article 2927, is presumed to have had knowl-
edge of the constructionwhich had been placed on
the former statute and to have intended the same
meaning in the re-enactment. tenhens Countv
.pfnyd ;lg,Te;. 397, 16 S.W.2pd804 (1929);Fez&al
rud I Yount-Lee Oil Co., 122 Tex. 21, 52
S.w.2d 56'(1532;; :~Railroadc mmission of.Tex .
Texas &,R. 0. R Co.',42 s.W.% 1091 (Tex.'CitsIpp.
1931, error ref:).
You have called our attention to Rosette v.
m, 196 S.W.2d 658 (Tex. Civ. App, 1946) wherein
the contentionwas made that a nominee for ihe office
of county commissionerwas an ineligible candidate
because he~had not resided in the precinct for six
months on the date of the primary election at which
he was nominated. 'Apparentlythe contestantwas con-
tending that the successful candidatehad not been
at any timera "bona fide citizenn or resident of the
@ecinct.'~ In affirming the judgment of the trial
.court,the,Court of Civil Appeals held that the trial
court's finding thatthe nominee was a re,sidentof
the precinctwas binding upon the appellate court,
since the evidence was such that reasonableminds .:
5
might draw different inferences and conclusionsthere-
from. The court did not state what the length of the
nomineet-sresidence in the precinct had been, nor did
s, it say that he must have been a resident for six
i; months preceding the primary in order to be an eligi-
;2,,i
. ble candidate. We do not interpret this opinion as
expressinga view favorable to the contestant1.s con-
tention that the statute required residence in the
precinct for six months preceding the~primarY election.
p,
Kamas~v. Stenaq 197 S.W.2d 193 (Tex. Civ.
?& App. 1946), involved a fait situation similar to that
-in Rosette v. Rqm&. Here also, the~contentionwas
made that the candidatewas Ineligiblebecause he had
not resided in the precinct for six months next preced-
ing the date of the primary. The issue in dispute was
whether the candidatewas a resident of the precinct
during the time he had been temporarilyabsent while
engaged in war work. The court's holding was that the
candidateby engaging in emergency temporarywar work
in another county did not abandon his residencewhich
~haa been definitelyfixed in the precinct for a number
of years before he entered upon that employment. It
is evident from the opinion that the court was not con-
cerned with the exact point of time from which the
Hon. Fred C. Brigman, Jr., page 4 W-1437)
prior.six months' residence shoula'becomputed and
was not passing on that question.
We have been unable to find any other case
touching upon the precise question here InVOlVed.
Since it is our opinion that neither of the two case
discussed above has ruled upon this point, we adhere
fi to the former holding'of this office in Opinion O-
(,+; 1964, m.
A candidatefor the office qf county
commissionerwho will have resided.ln the
commissibners'precinct for six months at
the time of the general election fulfills
the six months' residence requirementof
Section 5, Election.Code,and residence in
the precinct for less than six months at
the time of the primary election does not
make him ineligibls.tohave his name placed
on t~heprimary ballot.
APPROVED:, Yours very truly,
J. C. Davis, Jr.
County Affairs Division
EL Jacobson
Reviewing Assistant
Charles D. Mathews
First Assistant
MKW:wb