                                                                                      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
