                     November25, 1968


Honorable Ned Granger        Opinion No. h-309
County Attorney
Travis County Courthouse      I@: Qualifications for the
Austin, Texas                     appointment to the po8i-
                                  tion of deputy constable
                                  under the applicable state
                                  statutes and whether the
                                  position is deeamd a
                                  *public offiw in thim
                                  state" within the meaning
                                  of Article 1.05 of the
Dear Mr. Granger:                 Texas Election Code?
          You have requested an opinion    fran this office    on
the following questions:
          "1. Are there any statutory requirements
     as to residence of a deputy constable, and if
     there are, would you please cite them?
          “2.  Is the position  of Deputy Conatable
     a 'public office in this state' within the
     meaning of V.A.T.S.  Election Code Art. 1.051.,
           *3. Must a man be a resident of a pre-
     cinct  in order to qualify to serve as a dep-
     uty constable in that same precinct? If 80,
     must he have reeided in the precinct for any
     epecif ied length of time?

          "4. uust  a man be a resident of a county
     in order to qualify to nerve aa a hputy sheriff
     of that county? If no, must he have resided in
     the county for any specified length of time?"
          Article 6869, Vernon’s    Civil Statutes,   reads   in

part as follows:
           "Sheriffs shall have the power, by writing,

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     ilonorablebed Granger, page 2, (M-308)



          to appoint one or more deputies for their re-
          spective counties, to continue in office during
          the pleasure of the sheriff, who shall have power
          and authority to perform all the acts and duties
          of their principals; and every person so ap-
          pointed shall, before he enters upon the duties
          of his office, take and subscribe to the offi-
          cial oath, which shall be endorsed on his~ap-
          pointment, together with the certificate of the
          officer administering the same; and such ap-
          pointment and oath shall be recorded in the
          office of the County Clerk and deposited in
          said office. . . .I (Lmphasis added.)
               Article 6879a, Vernon's Civil Statutes, reads
     part as follows:
               *Section 1. The duly elected Constable
          in each Justice Precinct having a city or town
          of less than eight thousand (8,000) population
          according to the preceding Federal Census rn>
          appoint one (1) Deputy and no more; and each
          Justice Precinct having a city or town of eight'
          thousand (8,000) and less than forty thousand
          (40,000) population according to the preceding
          Federal Census may appoint two (2) Deputies and
          no more; and in each Justice Precinct having a
          town or city of forty thousand (40,000) popula-
          tion or more according to the preceding Federal
          Census may appoint five (51 Deputies and no
          more, and each and every instance said Deputy
          Constables shall qualify as required of Deputy .:.
          Sheriffs. . a .I (Emphasis added.)
               Article 1.05 of the Texas Election Code reads

     as follows:
               Wo person shall be eligible to be a
          candidate for, or to be elected or appointed
          to, any public office in this state unless
          he is a citizen of the United States eligible
          to hold such office under the Constitution   i
          and laws of this state and is under none of
          the disabilities for voting which are stated
          in Article VI, Section 1 of the Constitution
          of Texas on the date of his appointment or of

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          Honorable Ned Granger, page 3, (M-308)


               the election at which he is elected, and unless
               he vi11 have resided in this state for a period
               Of tvelve months next preceding the applicable
               date specified below, and for any public office
               which is less than statewide, shall have resided
               for 81x months next preceding such date in the
               district, county, precinct, municipality or
               other political subdivision for which the office
               if to be filledr
               "(1) For a candidate whose name is printed on
               the bellot for s general (first) primary election,
               the applicab1e.dat.eis the last day on which any
               candidate for the office involved could file his
               application to have his name printed on the ballot
               for that primary election.
               "(2) For an indepsndentor nonpartisan candidate
               in a general or special election, the applicable
               date is the last day on which the candidate's
               application for a place on the ballot could be
               delivered to the appropriate officer for receiving
               the application.
               "(3) For a write-in candidate, the applicable
               date is the day of the election at which the
               candidate's name is written in.
               '(4) For a party naninee who is nominated by
               any msthod other than by primary election, the
               applicable date is the day on which the nominr
               tion is made.
               "(5) For an appointee to an offiw,   the appli-
               cable date 16 the day on vhich the appointment
               is made.
                     "The foregoing requirements shall not apply
               to any office for which the Constitution or stat-
               utes of the United States or of this state pre-
               scribe qualificstionsin conflict herewith, and
               in case of conflict the provisions of such other
               laws shall control.
                    "bxcept as provided in Section 104 of this
               code, no ineligible candidate shall ever have
               his name placed upon the ballot at any priauary,
               general or special election. i40ineligible

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     Honorable Ned Granger, page 4, (~-308)


              candidate shall ever be voted upon nor have
              votes counted for him at any such primary, gen-
              eral or special election for the purpose
              of nominating or electing him, but votes cast
              for an ineligible candidate shall be taken into
              account in determining whether any other candi-
              date received the necessary vote for nomination
              or election. iloperson who advocates the over-
              throw by force or violence or change by uncon-
              stitutionalmeans of the present constitutional
              form of government of the United States or of
              this state, shall be eligible to have his name
              printed on any official ballot in any general,
              special or primary election in this state.*
                   It is clearly evident that Article 1.05 ofcthe
     Texas Election Code shows on its face that it relates to the
     eligibility requirementsof a candidate for, or one to be
     elected or appointed to any elective public office in this
     state.      It does not apply to the eligibility requirements
     to serve as a deputy sheriff or constable.
                   We   have searched the statutes and can find no
     requirements for residence for deputies. We therefore
     Concur     with you that there are no statutory requirements
     as to residence for deputies.
                                SUMMARY
                                --e-m--
                   There are no statutory requirementsas
              to residence for deputies. Article 1.05 of
              the Texas Election Code applies only to
              elective public offices and the eligibility
              of persons to beaidate       for or one to be
              elected or appointed thereto.
                                       /7
Honorable Ned Granger, page 5, (H-308)


Prepared by William J. Craig
Assistant Attorney General
APPROVED:
OPINIOiJCONMITTEE
Kerns Taylor, Chairman
Malcolm Quick
Bob Lattimore
Louis Neumann
Fisher A. Tyler
mmHIoRNL: PHILLIPS
Staff Legal Assistant




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