Untitled Texas Attorney General Opinion ( 1947 )

AUSYPIN``.~&X~IB.
-
Narch 20, 1947 ~’j ;,
opiaion ~00, v&96
Re: Whether or not there 1s a
vacancy la the office of
Justice of the Pea& of
hoclact 2, Fanala CQuaty,
Dear 31r: wider the facts submitted
We quote the following from your letter to the
Bon. T. 0. Finley, County Judge of Fannln Count p, ‘~in
uhlab you requeast aa opinion from this Department on the
above subject matter:
-our verbal .request submitted yeeter-
day presents ‘for the opl~&Io~of this @Iice
the follovlng question: Does the faot that
Fletcher Wllllama has moved.Srorn 3avby’la
Jortlce of the Peaae Precinct Ho. 2 of Fart-
nl& COUBtyj Texas, to the tovn ai Whitevrlght
vhlch Is in Grayson County, Texas, the said
Fletcher William bely Juatlce of the Pease
of arid Preclnat go. 2 of Famln County, Tex-
aa, vacate the office of JUstice of the Peace
of Precllrct Ho. 2 of Fatmitt County?
“It Is my understanding that the follov-
lag are the fasts of this ca.se aad I am pre-
suming that these facts are true, to-vlt:
Fletobrr! WIlllams was duly elected a&d qual-
Ifled as Justice. of the Peaoe 02 Preelmct go.
2 of Famln Oountg,‘Texas on.Jaatmry 1, 1945.
At the time of his quallflcatlon and uatll
lbeut Jaauary 1, 1946, he lived In the tevta
.oi Savog which vaa la said Justice Pmcla~t.
That on or about January 1, 1946 he reated
hi8 place to his mm-in-law so that his aon-
la-law voul& have a place to live and a farm
to vark. Mr. Wlllla~a moved from Savoy to
the town of Whltevrl&t which is in Orayson
ooullt y. That the said Williams has lived ia
the tom of Whltbmight from that day to this
and that he has rented his farm at Savoy for
.
. .
. ._
Boa. John C. Farwr, Page 2, V-96
the year 1947 and does not know vhea he vi11
move back to it. Nr. Williams pays all of
his tawe In Fannln County au4 votes at Savoy.
Hr. Wllliaw 414 not seek n-election to the
oiflee of Just lco of the Puoe at the oloc-
tiow held IP 1946, bat the ~OPlO or his pm-
clwt vroto hi8 maw 00. the ballet ati he va8
re-electod to tlu raid offlco. I* hu, M
puallfled as said Justice of the Poaee. *
It Is aotod that the pewou id question kas
beon elected and qualified as Justice of the Peace of
Pru@ct 2 of Fannln County and is at the present tlw
holding said office.
Wo quote the follovlng from our recent oplnloa
V-26, a copy of vhlch we are herewith enclorlug:
“biaae the person la qrvstlen is mw
legally holding the office of Commlssloner,
on the basis of the foregoing authorltles ve
we foroed to hold that he la errtitled to the
lwlweata lncideat to the office until his
tom ends; vhether by expiration of tlm6,
death, resignation or removal iron office,
and you are authorized to approve the par-
wat of saw.
n
. . .
“In viev of the foregoing, it is Our
oplaloa that the’ persoa la quest lo& can only
k removed, if at all, by a~proper prscoodlag
la the District Court brought by the county
or district attorney. This Dspartwat cannot
pass upon tho question of whether or aot then
is oauee for ronoval, for suah question au
only be determined by the, dlstrlat oourt and
the truth of said cause la to be detowinod by
a jury as provided in Artiole V, Section 24 of
our State Coaatitutioa aa& Artlole 5971 of our
utat utes . ’
In vlev of the foregoing, it Is our opinion
that so long as the person in question has not been re-
moved from office in a proper proceeding, there is no
vacancy in said offlce.
We would lika to point out, however, the fol-
low lng :
..
.:
Bon. John C. Farwr, Page 3, V-96
Article 2927, V. C. S., providesa
“go person shall be eligible to any State,
county, precinct or municipal office in this
State unless he shall be eligible to hold of-
flco under the Constltut ion of this State, and
ballot at any general or specihl election, or
at lay prImmy election where candidates are
uleeted uador primary election lava of this
State; and no such l@ellglble candidate shall
ever @I voted upon, nor hake votos aouetod for
tgit;tmariy such geaoral, special, or Wmary
. (thde,rrcorlng bum)
Article 2928, V. C. S., provldest
“lfolther the Secretary of gtWo, nor Cuy
Ooumty Judge of this Stats, nsr any ether
‘&u$hority authorlsbd to issue oertlflo8te8,
shall 188~ say-esrtlficates 0s e~octioa or
8))olatwmt to uy psrssn llebted or ~amaoiotod
to any ~fflcs IU this State, the is pot lllg-
lb10 to km14 suoll eifloo M&W &s Csut ltu-
tloa of this Sta te lnd under tkrrt``~Ctlef
sa4 t&a aaw~ 0s us lzwllglble
tlie gs8st ltut ion aad lavs of t 16 b&s, shall
be cortifled by any party c&tt*d or ant
authorlty author!lsod to h&o tias ciads ,oi oaa-
614~toa pl8cs& up08 the )rlmavf ballots nt~aay
p ewr ylla o tlw inth la Sta ts 2 th e
ad ww 0s
ad laollgible OuUldate uadar ‘the Cemrtltutloa
ud laws of this State shall bs placed upem
the ballet 0s any gsrsral or spclal elootiem
by aay authority whose duty it is to place
,naWs of caadSi5ates upon oSSlclal’ballots. *
Article 29% prdvldes, among other thilPgs,
that “the rssldeace of a single man la where he uSuallg
sleeps at night; that of a marrlod man la where his wife
.,..:,
..
. ,. 1 : (, : ,’
in ._ _
lion. John C. Farmer, Page 4, V-96
:
realdaa, or IS he be permanently separatod from his
vlfe, his rssldaace is where he sleeps at night. ”
Referring to Article 2958, V. C. S., it is
stated la Texas Juris., Vol. 16, p. 46:
‘?he statute defines the ‘res,ldence *
olthln the imanlng of the election lava, pro-
vl$lng that the resldeaoe of a married man Is
vhero his vlfe resides, or if he be permanently
separated from his wife, his residence Is vhere .
he sloeps at night. Thus, It has been held that
a wrrled i&an’s residence is la the city in vhieh
his vise realdea, and in vhloh she oarea for
thmlr children. But no matter how fam.lllea may
bs situated, they are not held to have abandoned
their residence la a given colloPlunlty wnly be-
oauso the husband or vise or both temporarily
lbnat themsolves on aocount of tholr ova health,
or that of their children, or to serve their
goverawnt, or because their trade or business I’
or profession takes thtm elaevhera for varying
periods of tlau . . .
We quote the Sollovl frcotthe case ,of Strat-
ton vaT Hall,>99 3. W. 24 865,%6:
., ~'
‘Article 2958 defines the ~rosldeace~
OS a married man, vlthln ‘tti meaning of ths
~olectlon lavs, to be vhere his Vlfe re~l&ts,
ualosa he be permanently separated from her,
.. ‘. and hid residence is conslderod to be la
that place ualeaa a contention is da that
he resides elsevhere, 16~Tex. Jur, 3
40. When a contention Is plade that a3%e*
.
wn’s residence Is la aow place othor than
IS the person in questlou, aa a wtter of
fact, had actually abandoned his residence In Precinct
2 of Faania County prior to the timb of election, and
vaa not an actual bona Side citlsea of Prealaat 2,
haala County, at that time, he would not have been
eligible for election to the office of Justice of the
Peace of Precinct 2, Fannln County, and would not be
.*
. .
Hon. John C. Farmr, Page 5, V-96
eligible to qualify for said office on January 1, 1947.
Whether the person la question had abandoned his res-
ldoace la Precinct 2, Faaaln CouatJr, ,and moved to Or&y-
aon County with the latontlo~ of eatabllshlug a nev 8ad
permanent residence therein at the tlw, pr6sOatU ques-
tions of fact upon which this office cannot pass.
Under the facts presented, there la ao
vacancy at the present tlms in the office of
Justice of the Peace of Preclnot 2 of Fannln
County. TS the Wrson.ln question had ac-
tually abandoaed his residence in Preclnot
2 of Faanln Count g prior to the t lme of the
electloa and vaa not an actual bona Side clt-
lwa of said precluat, he would not have been
eligible for eledtion to t&e office of Justice
of the Peace laU would not be eligible to qual-
lfy far arid office. This preaenta a factA;t6a-
tple urCvh&ah this off ice cannot pass. .
, . . .
Yours very truly,
ATTO- @lU&lUL Op !CXU
JB:djm:mrj
Enaloaure