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                                                                               293
                    THE
                                 ~~TEXAS




        Hon. Jack M. Allen                      Opinion No.   V-1164
        County Attorney
        Ochiltree  County                       Re: Authority of the com-
        Perryton, Texas                             missioners1  aourt to
                                                    approve the bona of a
                                                    justice  of the peace
                                                    who aoes not resiae in
                                                    the precinct  of his
        Dear Sir:                                   off ice.
                    You have requested an opinion concerning the au-
        thorlty   of the commissioners I court to approve the bond of
        a justice   of the peace uho does not reside in the precinct
        of his office.
                    Section   18 of   Article    V, Constitution   of Texas,
        provides:
                    “Each organized county in the State
              now or hereafter    existing,   shall be divided
              from time to time, for the convenience of
              the people, Into precincts,      not less than
              four and not more than eight.        The present
              County Courts shall make the first       division.
              Subsequent divisions      shall be made by the
              Commissioners’ Court, provided for by this
              Constitution.     In each such precinct     there
              shall be elected at each biennial election,
              one justice   of the peace and one constable,
              each of whom shall hold his office       for two
              years ana until his successor shall be elect-
              ed and qualified;    provided that in any pre-
              cinct in which there may be a city of 8000
              or more inhabitants,      there shall ;e elected
              two justices   of the peace.     a . .
                    Article   2927, V.C .S -, provides:
                    “Iio person shall be eligible  to any
              State, county, precinct   or municipal 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
294   Hon. Jack PI. Allen,    page 2   (V-1164)


           this State for the period of twelve (12)
           months and six (6) months in the county,
           precinct,   or municipality,     in which he of-
           fers himself as a candidate,       next preceding
           any general or special election,       and shall
           have been an actual bona fide citizen        of
           said county, precinct,     or municipality     for
           more than six (6) months. Wo person inell-
           glble to hold office     shall ever have Ns
           name placed upon the ballot at any general
           or special election,     0~ at any primary elec-
           tion where candidates are selected Under
           primary election    laws of this State; and no
           such ineligible    candidate shall ever be
           voted upon, nor have votes counted for him,
           at any such general,     special   OP primary
           election.    No person,   who  advocates   the
           overthrow by force or violence       or the
           change by unconstitutional       means of the
           present constitutional      form of government
           of the United States or of this State,
           shall be eligible     to have his or her name
           printed on any official      ballot in any gen-
           eral, special,    or primary election     in this
           State .e
                 The provisions     of Article   2927, above quoted,
      require that a precinct      officer  be a resident for a pe-
      riod of six months next preceding the date of election
      in the precinct     of his office.    Although the justice   of
      the peace referred     to in your request has not been a re-
      sident in the precinct      of MS office,    you state that he
      has been elected and has assumed and performed the duties
      of his office   for the last twenty-five      years.   Under these
      circumstances,    it is our opinion that he is at least a de
      facto officer   wunt.11 ejected In a proceeding having that
      object directly     in view.”    Aulanier v. The Governor, 1
      Tex. 653, 666 (1846); Williams v. Castleman, 112 Tex. 193
      247 S.W. 263 (1922).
                 Williams v. Castleman held that one who was in-
      eligible  to’ fill the office of justice of the Peace be-
      cause he had not resided in the precinct   SIX months prior
      to the date of his appointment became at least a de facto
      officer  by virtue of his appointment and entering Upon
      the auties of the office.
                  Article    2373, V.C.S.,   provides’
Hon. Jack Ea. Allen,     page 3    (V-1164)


             "The qualified     voters of each justice       pre-
      cinct.in   this State, at each biennial         election,
      shall elect one justice        of the peace, styled
      in this title     sjustice,8    who shall hold his of-
      fice for two years.        Each justice    shall give
      bond payable to the county judge in the sum of
      one thousand dollars,        condItioned   that he will
      faithfully   and impartially       discharge the duties
      required of him by law, ana will promptly pay
      over to the party entitled         to receive it, all
      moneys that may come into his hands during his
      term of office."
           Article 2373, it is noted, does not state with
whom the bond of the justice   of the peace should be filed
and approvea, nor is there any other statutory provls$,on
setting out this duty. .It Is our opinion,     however, tliat
the commissioners B court~has the implied authority    to
approve a bona executed by a justice     of the peace in con-
formity with the provisions   of Article   '2373.
             Section 20 of Article      III, Constitution      of
Texas, provides that no person who at any time may have
been a collector      of taxes shall be eligible        to any of-
fice of trust or profit         under the State government until
he shall have obtained a discharge from the amount of
such collection.       In construing this      rovlsion,    it was
g;gdgn     OglesbyJs v. State, 73 Tex. 6E8, 11 S.W. 877
            hat it was not the duty of the Comptroller s
office'to    determine the question of eligibility          for the
office    of assessor-collector      in approving 0~ aisapprov-
ing his bond, although evidence may have been before the
Comptroller which showed that the assessor-collector               had
not obtained his discharge for the moneys collected               by
him as required by Section 20 of Article           III.
           It is therefore  our opinion that the connnis-
sloners 1 court cannot determine the eligibility    of the
nerson in question for the office    of justice  of the
peace in approving OF disapproving    the bond, but its
sole function Is to pass upon the bond and approve it
if it is in conformity with the statute.
                           SlIMNARY
           The commissioners8 court cannot deter-
      mine the eligibility  of an individual to
296
      Hon. Jack M. Allen,     page 4   (V-1164)


              hold the office   of justice  of the peace in
              approving or disapproving    his bond, but its
              sole function is to pass upon the bond ana
              approve it if it is in conformity with AT-
              title  2373.   Oglesby's v. State, 73 Tex;,
              648, 11 S.W. 873 ~(U.389).
      APPROVgD?                               Yours very truly,
      J. C. Davis, Jr.                          PRICE DAHIEL
      County Affairs  Division                Attornef General
      Jesse P. Luton
      Reviewing A+.stant
      Charles D. Mathews                            John Reeves
      First  Assistant                                Assistant

      JR:mw
