Untitled Texas Attorney General Opinion ( 1947 )

R-142
March 28, 1947
Hon. Clayton Bray Opinion No. V-108~
County Attorney
Sutton County Re: Whether a county
Sonora, Texas surveyor may take
his oath 6f office
before a Notary
Public of another
county, and related
questions.
De* se:’ ” _.
Your request fdr an’opinion from this office
on the above subjeot gatter is 88 follow~l
“1. ‘Majr a Cixhty Surveyor, auly
elected, quelity for the office by sub-
soribing his oath befbre a Noatry Pub-
lic in another Cotitg and mailing said
oath, together with professional bond
9.
and bona(Jmsn,, in to the Commissioner*s
Court?
*2. If the anm~r to the above
c ...-- a.-
fa in the affirmativti, what period of
time is ~necessary before the office be-
comes vacant for ,noh-qualifying, assum-
ing that the situatiop in ‘1’) above,
is not present?
: .
‘:.
If’ euoh eleotea offioer is
hoospli$&&aa iMetinitely aue to the
infirmities of ags ana as’,8 result qf
_I, ‘. . an accident, and the probabilities are
that’ suoh offioial will never be able
to enter into the ah30harge of his,du-
ties, will a vacancy be ptiqumed to ex-
ist,, notwithatenaing the iapt that
proper oath ana bond has been mailed in
and aooeptea’i
-4. If ‘3l, above, is in the. af-
firmative, when and by whom will the ao-
tion be taken to declare the existing
Hon. CLayton Bray - Page 2 (v-108)
vaaanoy? (meaning: will en action
to remove en inoapaoitatea officer
have to be Instituted, or, will a
.vaoanoy merely be presumea to have
been in existence all along end auoh
attempted quelif ioetion a nullity?)”
Article XVI, Section 1 of our State Coneti-
tution provides, in pert, the following:
Members of the Legislature,
and all officers, before the enter
upon the duties of their off f 08s shall
take the foLlowing ,oath ix affirmation:
. . . .”
Axtlole 26, V.C.S., provides, in part the
following:
w&l1 oaths.‘. . or affirmations
may be~adn@nisfered and a oertifloate
’ oi the Saot given:
*L. Sr. ~within this State by a
t&otary public. . .”
Artiola 5289, V.W., provider:
“A county eurvepr shall be el-
eotoa in. aaoh county at eaoh general
eleotion for a term of two years. He
shall reside in the oounty end keep
his office et the oourthouse or some
‘.
.. -‘..
suitable building. at the county seat; ‘.~
the rent therefor to be paia by the
oommieeionersf oourt on satisfaotory
showing that the rent is reasonable,
the’ offioe neoesaary and that there
is no available offioe et the oour’t-
house.”
..
Artiole 5284, V.C.S., prmiaa8:.
“The oounty surveyor shall first I’ ..:.,-
give bond in suoh sum 88 the oommis-
,. I.
sioners’ oourt may fix, not less than 1.~‘. .,.
five hundred nor more then ten thousand :~.
dollars, ana oonaitioned that he will ; :,
II,’
,,, ‘:.
,::
:.. ;
faithfully perform the duties of his (~ ’ ‘,Y
offioe. * ‘i 1.:.y .:: : ”
/’ ,’
.
.. . : -..
,.
.Hon. Clayton Bray - Pega 3 (V-108)
It will be noted that none of the'abovequoted
oonstitutional or statutory provisions~requlres.that the
oath be taken and bona be given by a county surveyor with-
in the county of his residence. Therefore,"it is our op-
'inidn that a county surveyor, duly eleoted, may,qualify
for the office by subscribing hiti oath before a.NotaryPub-
110 in another county and mailing said oath together~with
his bona'ati requLrea by Article 5284.
In answer to your second questioni wB quote
the following from 34 Tex. Jur., pp* 360 and Wl:
"The statute4 provide that after eaoh
gener4l~eleotidn 0o.unt.y ana preoinct offi-
4ers shell qualify by taking the ~ffioial
oath and assuming the duties-of their re-
speotiveeoffioea on the fir.& day of JanuY.
ary following the lest general,eleotion, or
as soon thereattar as pqssible, and that ..r.
thow bqdaing offioe at saia time shall mu-
renaer,t.heiz' offioes t&their a``oess~rs'~n
eu4h date, or'ae soon thereafter aa:.thsir:
SUOO~S~O`` shall hav4 qualified aa be ready
to assume the.duties thereof.. Other.provis-
ionr fix the time within which oertain p&r-
tfoular ofiloers ere required to qualify. .A
,statute ~quiririg offioere to enter upon th4 ..:'
aisoharge of their autiee on 4 speoified
date impmtaiy if not ex~mssly, fix48 then
time within nhioh they ar4 required to qual-
.lis by t&i@ the oath.
"Statut4r fixing the time for quall&
.. ing are gsnetrally mgataea as aimotorj only;
and a8 a ruls:a failur& to ,qtlalify within
the tim4 pr44orlb4d dws not oreat a vaoanoy
In the offioe unless the statute so prOvib44..
But the Supreme Court has Baia that this rule
we8 made to oover 0888s whew the offioer oan-
not .for some g00a reason.b4*ona ~ie'own ‘son-
troi,. qualify within the time presoribea, ana’
it tiJ1 not be ext6naea to oases rhere'there
is a negleot~or~refuaal. to qualify; ana where
the offioer seeks en extension of the pre-
%. scribed time he must ahow a~ extraoFdin4ry'
.~ reason therefor.
*lStatutes relating to particular offioes
,sometimes provide that the office shall be
Hon. Clayton Bray - Page 4 (V-108)
deemed or aeolarea veoant, or that an
appointment thereto shall be void, in
case the person elected or appointed
.?a118 to qualify within a speoified
time. Such a failure may eleo in some .,
oiroumstances amount to an abanaon-
ment of the office so as to warrant the
appointment of another person to it on
the theory that a vaoanoy exists, But
the statute oannot be given that effect
where an elected officer attempts to
take the oath and presents it to the
proper officer within the presoribea
time, end the letter appoints another
to the office ,on the sole ground that
the eleotion oyas illegal. In suoh 0448
the legally eleoted offioer may reoov- .
4r ‘the offios, notwithstanding hi4 fail-
ur4 to qualify within the time preeorib4d,
but he must aubsoribe to the required 0&h.
before entering updn the p&ormt+~4 of.
his .+lt+es." ,
Since there is no: tims apeoifiea as to when
the odunty Burteyor is to’take hie’oath and.give bona,
this ofrice oannot hold, es a matter of law,’ that a va-
oanoy..~exlsts beoauab of a failure .to take the oath or
give ~bonawithin 4ny 4p40ififiea time..
Your thiira ana fourth Westions imolve the
remove1 of the Oounty surveyor from office by reason of
a serious physical defect, aue to en aoolaent, so es to
,make.the oounty trurveyor unable to disoharge the duties
of his office. _Y.~
Artiole V, SeOtiOn 24 of our Stat4 Coaetitu-
tion pr0tiaes:
*County Juage8, oounty attorn4y4,
olerke of ,the Diatrlot ana County CoUrta, ” _
.~juetloes ‘of the peace, oonatebles, and
other county officere, may be removed by
the Judges of the District Courts for~in-
oompetenoy,~offioial miSOondUOt, habitual
drunkenness, or other oauses defined by
law, upon the +aues there? or being eet
forth in writing and’the finaing’of its
twth by a. j,ury.”
:
Hon. Clayton Bray - Page ,5 (V-108)
Article 5970, V.C.S., proviaes:
“All district and county attorneys,
county judges, commissioners, clerks of
the district and cotintycourts and single
clerks in counties where one clerk dis-
charges the duties of district and county
clerk, county treasurer, ‘sheriff, county,
surveyor, essessor , collector, constable,
cattle and hide inspector, justice of the
peace and all county officers now or here-
after existing by authority either of the
Constitution or Jaws, may be removed from
offioe by the judge of the dist’riot oourt
for inoompet4ncy, official misoonduot or
becoming intoxioatea by drinking intoxi-
cating liquor, es a beverages, whether on .’
atity or not; provided such officer shW
not be removed for beooming intoxicated
when it appears upon the trial of suah ,of- .:
ricer that such intoxication ~88 produoeb
by drinking intoxicating liquors upon the
air4otion ana prescription of a duly li- ‘.
oens~a~praotioing phy4ioian of this Statei”~:..
Art1014 5971, V.C.S., provides:
“In every case of removal from of-
floe for the oeuses named in the preoeding ,...~.,
article, ‘the cause or causes thereof shell
be set forth in writing,, and the truth of
said oeuse or oauses be found by a jury.”
&Mole 5972, V.C.S. ,. defines incompe.$enoy
es the .following’:
“Bi Pinoompetenoyl & used heiein is
meant gross ignqrence of offioial duties,
or gross oareleasness in the aisoharge of
them; or an officer may be found to be in-
oompetent when, by reason’of some serious
physical or mental defect, not existing at
the time of hi4 eleotion, he haa become un-
fit or unable to disoharge promptly and
properly the duties of.his office,”
~I? the facts in your case fit the statutes
above oited, it ~1s our opinion that the County or Dls-
triot Attorney may institute a prooeeding in the Di,striot
Hon. Clayton Bray - Page 6 (V-108)
Court to remove the official on the ground that he is
unable to discharge promptly~ and properly the duties
of his office, See Reeves YE. State, .267 S.!‘J, 666 and
State 4x rel Downs, et al, ~a, Harney, 164 S.W, .2a 55,
writ nfu44a.
This office oannot pass upon the faot ques-
tion of whether or not there ie eeuse for remevel. Sueh
question can be determined only by the Mstriot Court
end the truth of said cause is to be determimd by a
jury es provided by Article V, Seotlon 24~ of our State
Constitution and Article 5971 of our statutes.
1. A, county surveyor, duly: el&tea,~
may qualify for the office by subscribing his-
oath before a Notary pliblic In anothek oounty
and mefling his Oath together with his bona
as ~piesorlbed by Artiole ,5284. Artiels 26,V.iLS.:
,‘c
2. .Where a oounty off&r has been ini
jurea, causing a physical defeat, ‘not existing
et the time of his election, so as to make him
uneble to dis~oharge the .duties of his. offloe,
suoh officer-may be removed from by a
orfice
finding thereof in e proceeding In the Diefriot
Court brought by the County or District Atto%
my. Art:V, Sea. 24 of.the State Conetitution;
Arts; 5970, 5971, 5~972, v:c.s.
Youra ~41-9 truly,
:
‘I. Ba&$fGy3y?
JlIBtdjmiwb :’
.~
Arsistant