             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
