Untitled Texas Attorney General Opinion ( 1951 )

. -
293
THE
``TEXAS
Hon. Jack M. Allen Opinion No. V-1164
County Attorney
Ochiltree County Re: Authority of the com-
Perryton, Texas missioners1 aourt to
approve the bona of a
justice of the peace
who aoes not resiae in
the precinct of his
Dear Sir: off ice.
You have requested an opinion concerning the au-
thorlty of the commissioners I court to approve the bond of
a justice of the peace uho does not reside in the precinct
of his office.
Section 18 of Article V, Constitution of Texas,
provides:
“Each organized county in the State
now or hereafter existing, shall be divided
from time to time, for the convenience of
the people, Into precincts, not less than
four and not more than eight. The present
County Courts shall make the first division.
Subsequent divisions shall be made by the
Commissioners’ Court, provided for by this
Constitution. In each such precinct there
shall be elected at each biennial election,
one justice of the peace and one constable,
each of whom shall hold his office for two
years ana until his successor shall be elect-
ed and qualified; provided that in any pre-
cinct in which there may be a city of 8000
or more inhabitants, there shall ;e elected
two justices of the peace. a . .
Article 2927, V.C .S -, provides:
“Iio person shall be eligible to any
State, county, precinct or municipal 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
294 Hon. Jack PI. Allen, page 2 (V-1164)
this State for the period of twelve (12)
months and six (6) months in the county,
precinct, or municipality, in which he of-
fers himself as a candidate, next preceding
any general or special election, and shall
have been an actual bona fide citizen of
said county, precinct, or municipality for
more than six (6) months. Wo person inell-
glble to hold office shall ever have Ns
name placed upon the ballot at any general
or special election, 0~ at any primary elec-
tion where candidates are selected Under
primary election laws of this State; and no
such ineligible candidate shall ever be
voted upon, nor have votes counted for him,
at any such general, special OP primary
election. No person, who advocates the
overthrow by force or violence or the
change by unconstitutional means of the
present constitutional form of government
of the United States or of this State,
shall be eligible to have his or her name
printed on any official ballot in any gen-
eral, special, or primary election in this
State .e
The provisions of Article 2927, above quoted,
require that a precinct officer be a resident for a pe-
riod of six months next preceding the date of election
in the precinct of his office. Although the justice of
the peace referred to in your request has not been a re-
sident in the precinct of MS office, you state that he
has been elected and has assumed and performed the duties
of his office for the last twenty-five years. Under these
circumstances, it is our opinion that he is at least a de
facto officer wunt.11 ejected In a proceeding having that
object directly in view.” Aulanier v. The Governor, 1
Tex. 653, 666 (1846); Williams v. Castleman, 112 Tex. 193
247 S.W. 263 (1922).
Williams v. Castleman held that one who was in-
eligible to’ fill the office of justice of the Peace be-
cause he had not resided in the precinct SIX months prior
to the date of his appointment became at least a de facto
officer by virtue of his appointment and entering Upon
the auties of the office.
Article 2373, V.C.S., provides’
Hon. Jack Ea. Allen, page 3 (V-1164)
"The qualified voters of each justice pre-
cinct.in this State, at each biennial election,
shall elect one justice of the peace, styled
in this title sjustice,8 who shall hold his of-
fice for two years. Each justice shall give
bond payable to the county judge in the sum of
one thousand dollars, condItioned that he will
faithfully and impartially discharge the duties
required of him by law, ana will promptly pay
over to the party entitled to receive it, all
moneys that may come into his hands during his
term of office."
Article 2373, it is noted, does not state with
whom the bond of the justice of the peace should be filed
and approvea, nor is there any other statutory provls$,on
setting out this duty. .It Is our opinion, however, tliat
the commissioners B court~has the implied authority to
approve a bona executed by a justice of the peace in con-
formity with the provisions of Article '2373.
Section 20 of Article III, Constitution of
Texas, provides that no person who at any time may have
been a collector of taxes shall be eligible to any of-
fice of trust or profit under the State government until
he shall have obtained a discharge from the amount of
such collection. In construing this rovlsion, it was
g;gdgn OglesbyJs v. State, 73 Tex. 6E8, 11 S.W. 877
hat it was not the duty of the Comptroller s
office'to determine the question of eligibility for the
office of assessor-collector in approving 0~ aisapprov-
ing his bond, although evidence may have been before the
Comptroller which showed that the assessor-collector had
not obtained his discharge for the moneys collected by
him as required by Section 20 of Article III.
It is therefore our opinion that the connnis-
sloners 1 court cannot determine the eligibility of the
nerson in question for the office of justice of the
peace in approving OF disapproving the bond, but its
sole function Is to pass upon the bond and approve it
if it is in conformity with the statute.
SlIMNARY
The commissioners8 court cannot deter-
mine the eligibility of an individual to
296
Hon. Jack M. Allen, page 4 (V-1164)
hold the office of justice of the peace in
approving or disapproving his bond, but its
sole function is to pass upon the bond ana
approve it if it is in conformity with AT-
title 2373. Oglesby's v. State, 73 Tex;,
648, 11 S.W. 873 ~(U.389).
APPROVgD? Yours very truly,
J. C. Davis, Jr. PRICE DAHIEL
County Affairs Division Attornef General
Jesse P. Luton
Reviewing A+.stant
Charles D. Mathews John Reeves
First Assistant Assistant
JR:mw