                         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




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