Untitled Texas Attorney General Opinion ( 1946 )

TEIE ATTORNEY GENE=L
OF I’EXAS
GROVER SELLERS AUSTIN IL T~xacr
Hon. Thos. J. Hightower
D,lstrlctAttorney
75th Judicial District
Liberty, Texas
Dear Sir: Opinion No. O-7194
Rk: Whether or not a person who has
been adjudged a non compos mentis
and who cannot read and write the
English language be entitled to
have his name placed on the Demo-
cratic ticket for the office of
Sheriff of Liberty County, Texas
Your request for an opinion from this department on
the above subject matter is as follows:
"Would the fact that a person who has been adjudged
a non compos mentis and who has not gone through the pro-
per procedure to have this conviction set aside and one
who cannot read and write the English language be a bar
to having his name placed upon the Democrat ticket for
a County Office?"
You
. also.I.
stated in answer to-.our .letter for additional
information tnat tne person reserrea to In your request was
seeking the office of sheriff of Liberty County, Texas.
We know of no provisIon in the Constitution or stat-
utes of this State requiring a candidate for the office of
sheriff to be able to read and write the English language.
With reference to your question concerning the eligi-
bility of a person who has been adjudged insane to have his
name placed upon the Democratic ticket, we call your attention
to the following provisions:
Art. 6866, V.A.C.S., provides:
"Every perosn elected to the office of sheriff shall,
before entering upon the duties of his office, give a
bond with two or more good and sufficient sureties, to
be approved by the Commissioners' Court of his county,
for such sum as may be directed by such court, not less
Hon. Thos. J. Hightower, page 2 O-7194
than Five Thousand ($5,000.00) Dollars nor more than
Thirty Thousand ($30,000.00) Dollars payable to the
Governor and his successors in office, conditioned that
he will account for any pay over to the persons author-
ized by Law to receive the same, all fines, forefeitures
and penalties that he may collect for the use of the
State or any county, and that he will well and truely
execute and make due return of all process and precepts
to him lawfully directed, and pay over all sums of money
collected by him by virtue of any such process or pre-
cept, to the persons to whom the same are due, or their
lawful attorney, and that he will faithfully perform all
such duties as may be required of him by law, and further
conditioned that he will pay over to his county all
moneys illegally paid to him out of county funds, as
voluntary payments or otherwise, and said sheriff shall
also take and subscribe the official oath, which shall
be indorsed on said bond, together with the certificate
of the officer administering the same. When any person
elected or appointed sheriff, in accordance with this
Article, shall have given bond and taken his official
oath, he may enter at once upon the discharge of his
duties, and his acts shall be as valid In Law before re-
ceiving his commission as afterwards; said bond shall
not be void on the first recovery, but may be sued on
from time to time In the name of any person injured
until the whole amount thereof Fs recovered; provided,
however, that no sheriff or his duly and legally appointed
deputies shall be responsible on their official bond or
personally by reason of having received from or confined
any prisoner delivered or surrendered to them by any
State Ranger."
Articel 6867, V.A.C.S., states that:
"When any person elected sheriff shall neglect, re-
fuse or fail from any cause whatever to give bond and take
the official oath within twenty days aft$r notice of his elec-
tion, the office shall be deemed vacant.
It will be noted that by virtue of the foregoing stat-
utes a candldate for the office of sheriff, if elected to that
office, must take the official oath and give bond within twenty
days after notice of his election.
ArtLcle 25; V.A.C.S., provides:
"All oaths and affirmations shall be administered In
the mode most binding upon the conscience of the individual
taking same and shall be subject to the plains and penalties
of perjury."
. .
Hon. Thos. J. Hlghtower, page 3 O-7194
Article 305, V.A.P.C., provides:
,I. . . .Oaths of office, or any other promissory oaths,
are not included In the definition of perjury, except
that part of the official oath which relates to dueling."
We quote the following from 39 Amer. Jur. pp. 494
and 495:
"In Its broadest sense, an oath 1s any form of attest-
ation by which a person signifies that he is bound In con-
science to perform an act faithfully and truthfully. It
Involves the idea of calling on God to witness what 1s
averred as truth, and It is supposed to be accompanied
with an invocation of His vengeance, or a renunciation
of His favor, In the event of falsehood. The word "oath'
has been construed in include 'affirmation' in cases
where?,by law, an affirmation may be substituted for an
oath.
"The administering of an oath in legal form 1s re-
garded not only as the hlghest test of truth, but as an
instrument appropriated by the law for its ascertainment
in judicial Investigations. It purpose is to purge the
conscience and lmpress the witness with a due sense of
religious obllgatlon, so as to secure the purity and
truth of his testimony under the influence of Its
sanctity."
In Vaughn v. State, 177 S.W. (2d) 59, the Court of
Criminal Appeals In distinguishing the difference between an
"affidavit ' and "oath" used the following language:
"An oath is any form of attestation by which a person
slgnlfies that he 1s bound in conscience to perform an
act faithfully and truthfully. The difference between an
affldavlt and an oath Is that an affidavit consists of a
statement of fact, which is sworn to as the truth, whlle
an oath Is a pledge. 39 Am. Jur. 494."
It is apparent from the foregoing authorities that it
1s the purpose of an official oath to bind the conscience of
the person taking the oath to perform an act faithfully and
truthfully. We think it Is elementary that this purpose could
not be accomplished by an Insane person taking an oath. There-
fore, it is our opinion that an insane person cannot take the
offlclal oath as prescribed by Article 6867, supra.
"A bond 1s an obligatory instrument in writing whereby
one binds himself to another to pay a sum of money or do some
Hon. Thos. J. Hightower, page 4 O-7194
other act. It is what binds; therefore an instrument in
writing that legally binds a person to do a certain thing
may be called 8 bond. In this sense, the ,term implies no-
thing more than a contract." 7 Tex. Jur. 57 and 58.
"Bonds are construed in accordance with the rules
governing the construction of written contracts." 7 Tex.
Jur. 82.
Since a bond is construed in accordance with the
rules governing written contracts Andy is In fact a special
type of contract, we call your attention to the following
quotation from 24 Tex. Jur. pp. 380-382:
'AS a general rule the contracts of a person of un-
sound mind, like those of an infant, are voidable, but
not absolutely void. They may not be impeached collater-
ally, and they are subject to ratification.
"A different rule obtains, however, with respect to
the contracts of a person who has been placed under
guardianship, pursuant to a valid judgment of insanity.
'Such a person, whilst under legal and subsisting guard-
ianship, and in support of his guardian's authority, is
conclusively presumed incompetent to contract, and his
deed, as against his guardian is absolutely void.' There
is reason to believe that, even in the absence of guard-
ianship, a person who has been adjudged insane should be
considered utterly lncaoable of making a binding contract."
(Underscoring ours)
Article 5998, V.A.C.S., provides:
"The offlclal bond of each officer shall be executed
by himwith two or more good and sufficient sureties ora
solvent surety company authorized to do business in this
State." (Underscoring ours)
We believe it Is obvious from the foregoing that an
insane person does not have the mental capacity to be a party
to a bond contract 8s required by Art. 5998 and, therefore,
could not execute .avalid bond.
It necessarily follows from what we have already said
that an insane person is lnellglble to hold the office of
sheriff since he cannot take the official oath and give bond
as required by Articles 6866 and 6867, supra.
In 24 Tex. Jur. pp. 415 and 416, we find the following:
Hon. Thos. J. Hightower, page 5 O-7194
,1
. . . . .the law indulges a disputable presumption
of sanity, and casts on the party who alleges insanity
the burden of proving his contention. On the other hand,
proof of the existance of Insanity at a particular time
raises a rebuttable presumption of the continuance there-
of, and places on the party who asserts a restoration of
reason the burden of proving that sanity had been in fact
restored. Stated in the language of authority:
"Three rules seem to be fairly well stated in
this connectlon:~ It Is the presumption of law that
all men are sane, and the burden to prove insanity
is on the party alleging. This is the first rule.
The second is: Insanity admitted or once proved to
exist is presumed to continue. Third. If a recovery
or a lucid interval is alleged to have occurred, the
burden t;$prove such allegation 1s on the party mak-
(Morse v. State, 68 Crlm. App. 351, 152
s'F&.)
We note the following discussion of the effect of a
judgment of insanity in the case of Williams,v. Sinclair -
Prairie Oil Company (Dism., Judgm, Cor.), 135 S.W. (2d) 211:
"It is further contended that since the judgment in
cause No. 7870 recites that the court found that John R.
Williams was sane at the time he executed ,the instrument
sought to be cancelled, that such finding raised a legal
presumption of sanity at all subsequent dates, therefore
it must be presumed that John R. Williams was sane at the
time of the trial. Counter to this contention plaintiff
contends that the judgment of the county court of Gregg
County rendered In 1909 adjudging John R. Williams insane
legally established the status of John R. Williams as that
of an insane person and that proper verity given to that
judgment conclusively affirms the issue of his lnsanlty
at all sebsequenttimes until he has been restored to
sanity by judgment of the county court In a proceeding
instituted for that purpose as authorized by the restor-
ation statute. Prior to the enactment of the restoration
statute it was held that such a judgment of insanlty, as
against strangers thereto, created a rebuttable presump-
tion of insanity; that is, 'prima facie evidence of the
mental unsoundness adjudged to exist.' Herndon v. Vick,
18 Tex. Civ. App. 583, 45 S.W. 852. We do not think
that the enactment of the restoratlon statute changed
the effect of 8 judgment of insanity from a rebuttable
presumptlon to a conclusive presumption. It is our
opinion that the restoration statute merely provided a
remedy for permanently removing the existing rebuttable
Hon. Thos. J. Hightower, page 6 O-7194
presumption of insanity. Therefore we think that the
judgment of the counts court of Gregg County adjudging
John R Williams insane has the legal effect of con-
stituting a continuous rebuttable presumption of ln-
sanity, effective at any time the issue Is raised and
continues to have that force and effect until his
status of sanity Is adjudged to be restored by a judg-
ment of the countv court in a aroceedlna authorized
for that puruose by the restoration statute. Hence the
finding of the court that John R. Williams was sane at
the time he executed the conveyance does not have the
legal effect of a judgment of the county court restoring
his status of sanity, so as to raise the presumption of
sanity at the time the judgment was rendered in cause
No. 7870." (Underscoring ours)
In Bogel v. White, 168 S.W. (2d) 309 (writ refused)
the Court of Civil Appeals affirmed the judgment of the trial
court in refusing to admit a will to probate,on the ground
that the deceased was insane and did not possess ~testamentary
capacity to execute a valid and legal will. We quote the
following language from said case.
"This court, however, falls to see how the 1915 re-
trial of the deceased, however invalid it may have later
turned out to have been, could have obliterated the still-
subsisting judgment of Insanity generally against him,
of April 20 of 1910, which had never been contested, ap-
pealed from, nor otherwise removed; in fact, since that
was a general conviction for insanity, attended by the
appointment of a guardian of the lunatic's estate, ren-
dered by a court of competent jurisdiction with full
power in the premises, as this court reads the authorities,
the insanltv therein so determined to exist was presumed
by law to continue until the unfortunate victim's status
as to sanity was changed by a subsequent judgment of a
county court, in a proceeding authorized for that uurpose
by the 'restoration statute. Vernon's Ann. Civ. St. art.
5561a, 8 4 68 C.J 452 Sec. 52; P. 453, Sec. 53,
and p. 454: Sec. 54: gillla& v. Sinclair-Prairie Oil Co.,
Tex. Div. App., 135 S.W. 2d 211; Vance v. Upson, 66 Tex.
476, 1 S.W. 179; 17 Tex. Jur. p. 582, Sec. 242; Navorro
v. Garcia, Tex. Civ. App., 172 S.W. 723; 68 C.J., page
478, Sec. 86." (Underscoring ours)
Article 2927, V.A.C.S., reads RS follows:
'NO person shall be ellglble to any State, county,
precinct or munlclpal office in this State unless he shall
be eligible to hold office under the Constitution of this
State, and unless he shall have resided in this State for
Hon. Thos. J. Hightower, page 7 O-7194
the period of twelve months and six months in the county,
precinct, or munlclpalitg, in which he offers himself
as a candidate, next preceding any general or special
election, and shall have been an actual bona fide citi-
4 zen of said county, precinct, or municipality for more
than six months. No Person Ineligible to hold office
shall ever have his name DlaCed uoon the ballot at any
general or soeclal election, or at any orlmary election
where candidates are selected under primary election
laws of this State; and no such ineligible candidate
shall ever be voted uoon, nor have votes counted fcr
him, at any such general, special, or orlmarv election."
(Underscoring ours)
Article 2928, V.A.C.S., provides:
"Neither the Secretary of State, nor any county
judge of this State, nor any other authority authorized
to issue certlflcates, shall Issue any certificates of
electlon or appointment to any person elected or ap-
pointed to any office In this State, who is not eligible
to hold such office under the Constltutlon of this State
and under the above article; and the name of no ineligible
person, under the Constitution and laws of this State,
shall be certified by any party, committee, or any author-
ity authorized to have the names of candidates Dlaced
uoon the primary ballots at any orlmarv electlon In this
State; and the name of no ineligible candidate under the
Constitution and laws of this State shall be Placed uDon
the ballot of any general or soeclal election bg ang au-
thority whose duty it Is to olace names of candidates
uoon official ballots." (Underscoring ours.)
In view of the foregoing, It is the opinion of this
department that so long as the presumption of insanity has not
been overcome in a proper proceeding, a person who has been
adjudged Insane would not be entitled to have his name placed
upon the Democratic ticket as a candidate for sheriff.
We trust that we have satisfactorily answered your
request.
Ron. Thos. J. Hightower, page 8 o-7194
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/J. A. Ellis
J. A. Ellis
Assistant
By s/John Reeves
John Reeves
JR:djm:wc
APPROVED APRIL 30, 1946
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Oplnlon Committee By s/BWB Chairman
This Opinion Considered And Approved In Limited Conference