                 April 29, 1952

Hon. Fred C. Brigman, Jr. Opinion 6   V-1437.
County Attorney
uvalde county             Re: Eligibility of a person
palde, Texas                   who will have resided
                               In a commissioners8pre-
                               cinct for four months
                               on the date of the first
                               primary t,obe a csndi-
                               date for county commis-
Dear Sir:                      sioner.
         .Youhave requested an opinion of this office
on the following question involving an interpretation
of Section 5 of the Texas Election Code (Acts 52na Leg., 'l.'?
B.S. 1951, ch.'~~&92,
                    p. 1097):
          "1s a person who will have resided in          '
     a'commlssioners'precinct for four months
     at the date of the first primary election
     but who will have resided in that precinct
     for seven months at the time of the general
     election eligible to have his name placed
     on the primary election ballot for the of-
     fice of county commissioner?~~
          Section 5 of the Election Code reads as fol-
     lows:
          90 person shall be eligible to any
     State, county, precinct or municipal office
     in ,thisState unless he shall be eligible
     to hold office under the Constitutionof
     this State, and unless he shall have resided
     in this State for the period of twelve (12)
     months and six (6) months in the county, pre-
     cinct, or municipality,in which he offers
     himself as a candidate,next preceding any
     general or special election and shall have
     been an actual.bonafide ciiiaen of said
     county, precinct, or munici ality for six
     (6) months. NO person inelEgible to hold
     office shall ever have his name placed upon
r : ‘,?
ti! .*n   Hon. Fred Cl Brigman, Jr., page 2   (v-1437)


              the ballot at any general or special
              election, or at any primary election
              where candidatesare selectedunder
              primary election laws of this State;
              and no such ineligiblecandidate shall
              ever be voted upon, nor have votes
              counted for him at any such general,
              special, or primary election. . o o"
          This section is taken from Article 2927 V.C.S., and is
          in Identical language except that Article 2927 required
          the candidate to have been acitizen of the county, pre-
          cinct, or municipalityfor "more than sizmonths,~~where-
          as the present statute reads "for six months."
                    The question ou have presentedwas answered
          in Att'y Gen. Op, o-196?T(l%O), which held that the six
          months' residence and citizenshiprequirementsin Arti-
          cle 2927 were referable to the general or special elec-
          tion at which the officer was to be elected, and did not
          refer to primary elections for the nomination of party
          candidates. In the course of the opinion it was stated:
                   "It is observed that the term 'gen-
              era1 or special election,~~only,appears
              in the first sentence of the statute;
              whereas, thereafter in the statute touch-
              ing a different but related matter appear
              the terms 'any general or special elec-
              tion, or at any primary election.' Clearly,
              therefore, the employment of the term 'gen-
              eral or special election,:pertaining to
              the six months residence and citizenship
              requirementwas not intended to include
              primary electlons. . . .
                    "It has been repeatedlyheld by this
               department that, under Article 2927, supra,
               apart from other necessary qualifications,
               an individual is eligible to hold a public
               office if he has resided in, and been a
               bona fide citizen of, the county, precinct,
               or municipality six months prior to the
               general election or special elections fixed
               by law.n,
                    The Legislature .in re-enactingSection 5 of
          the Election Code in sub~s{antially
                                            the same language
      Hon. Fred C. Brigman, Jr., page 3   (v-1437)


      used in Article 2927, is presumed to have had knowl-
      edge of the constructionwhich had been placed on
      the former statute and to have intended the same
      meaning in the re-enactment. tenhens Countv
     .pfnyd ;lg,Te;. 397, 16 S.W.2pd804 (1929);Fez&al
       rud I           Yount-Lee Oil Co., 122 Tex. 21, 52
      S.w.2d 56'(1532;; :~Railroadc mmission of.Tex    .
      Texas &,R. 0. R Co.',42 s.W.% 1091 (Tex.'CitsIpp.
      1931, error ref:).
                 You have called our attention to Rosette v.
      m,      196 S.W.2d 658 (Tex. Civ. App, 1946) wherein
      the contentionwas made that a nominee for ihe office
      of county commissionerwas an ineligible candidate
      because he~had not resided in the precinct for six
      months on the date of the primary election at which
      he was nominated. 'Apparentlythe contestantwas con-
      tending that the successful candidatehad not been
      at any timera "bona fide citizenn or resident of the
      @ecinct.'~ In affirming the judgment of the trial
      .court,the,Court of Civil Appeals held that the trial
       court's finding thatthe nominee was a re,sidentof
       the precinctwas binding upon the appellate court,
       since the evidence was such that reasonableminds         .:
                                                                 5
      might draw different inferences and conclusionsthere-
      from. The court did not state what the length of the
      nomineet-sresidence in the precinct had been, nor did
s,     it say that he must have been a resident for six
i;    months  preceding the primary in order to be an eligi-
;2,,i
   . ble candidate. We do not interpret this opinion as
       expressinga view favorable to the contestant1.s con-
       tention that the statute required residence in the
      precinct for six months preceding the~primarY election.
p,
                Kamas~v. Stenaq 197 S.W.2d 193 (Tex. Civ.
?&    App. 1946), involved a fait situation similar to that
     -in Rosette v. Rqm&. Here also, the~contentionwas
      made that the candidatewas Ineligiblebecause he had
      not resided in the precinct for six months next preced-
      ing the date of the primary. The issue in dispute was
      whether the candidatewas a resident of the precinct
      during the time he had been temporarilyabsent while
      engaged in war work. The court's holding was that the
      candidateby engaging in emergency temporarywar work
      in another county did not abandon his residencewhich
     ~haa been definitelyfixed in the precinct for a number
      of years before he entered upon that employment. It
      is evident from the opinion that the court was not con-
      cerned with the exact point of time from which the
     Hon. Fred C. Brigman, Jr., page 4   W-1437)


     prior.six months' residence shoula'becomputed and
     was not passing on that question.
               We have been unable to find any other case
     touching upon the precise question here InVOlVed.
     Since it is our opinion that neither of the two case
     discussed above has ruled upon this point, we adhere
 fi to the former holding'of this office in Opinion O-
(,+; 1964, m.


               A candidatefor the office qf county
          commissionerwho will have resided.ln the
          commissibners'precinct for six months at
          the time of the general election fulfills
          the six months' residence requirementof
          Section 5, Election.Code,and residence in
          the precinct for less than six months at
          the time of the primary election does not
          make him ineligibls.tohave his name placed
          on t~heprimary ballot.
     APPROVED:,                      Yours very truly,
     J. C. Davis, Jr.
     County Affairs Division
     EL Jacobson
     Reviewing Assistant
     Charles D. Mathews
     First Assistant
     MKW:wb
