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                                     EA           NEY           GENERAL
                                              QFTEXAS
                                          AUSTIN.   ‘l%XAS      78711
CRA,,‘F‘,RD        ‘X       MARTIN
   AlTORNEX        OENERAL
                                              October 22, 1969

         Honorable Hollis Garmon                    Opinion No. M- 500
         District Attorney
         8th Judicial District                      Re:      Status of Hunt County
         Post Office Box 111                                 District Attorney under
         Greenville, Texas 75401                             Senate Bill No. 22, Acts
                                                             1969, 61st Leg., 2nd C.S.
         Dear Mr. Garmon:
              Your recent letter requests the opinion of this office
         concerning your status as District Attorney of the 8th
         Judicial District of Texas in view of Senate Bill No. 22,
         Acts 1969, 61st Legislature, 2nd Called Session. Your
         specific question is:
                       "Am I disqualified to continue to serve
                  as District Attorney of the 8th District con-
                  sisting of Hopkins, Rains and Delta Counties,
                  although I reside in Hunt County?"
              Your letter also included the following facts and
         observations:
                       '1 reside in Hunt County.               Article 332
                  Revised Civil Statutes provides              that the District
                  Attorney shall be a resident of              the District.
                  I do not reside in the existing              8th District
                  Attorney's jurisdiction.
                        "The Texas Constitution provides that en
                   officer continues to serve until his successor
                  .has been elected, appointed, or,qualified;
                   therefore, I presume that my status as District
                  Attorney of the 8th and 196th Districts continues
                   simultaneously until appointments are made."
              Prior to the enactment of Senate Bill No. 22, the 8th
         Judicial District was composed of Hunt, Hopkins, Delta and
         Rains Counties, while the 62nd District was composed of Hunt,
         Lamar, Delta, Franklin and Hopkins Counties. You reside in
         Hunt County, were duly elected District Attorney for the 8th



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Hon. Hollis Garmon, page 2 (M-500)


Judicial District at the last general election, and have
been serving in that capacity.
     Senate Bill 22 creates the 196th Judicial District
which is composed of Hunt County only, and Hunt County is
removed from the 8th and 62~ Judicial Districts. Senate
Bill 22 also creates the office of District Attorney for
the 196th Judicial District.
     As we understand the undisputed facts, you resided
in Hunt County on the effective,date of Senate Bill 22;
you have resided in Hunt County since that time; and you
are continuing to reside in Hunt County. Under these
conditions, it is the opinion of this office that there
exists a vacancy in the office of District Attorney of the
8th Judicial District of Texas.
     Article XVI, Section 14 of the Constitution of Texas
provides:
         "All civil officers shall reside within
    the State; and all district or county officers
    within their districts or counties, and shall
    keep their offices at such places as may be
    required by law; and failure to comply with this
    condition shall vacate the office so held."
     Article 332, Vernon's Civil Statutes, in part, provides:
          1,
           . . . district and county attorneys shall
     reside in the district end county respectively,
     fox which they are elected; . . .'I
     In 47 Texas Jurisprudence 26 20, Public Officers,
Section 7, it is observed that a public officer . . . holds
subject to the right of the proper authority to abolish the
office and thus oust him before the expiration of the term
for which he was elected or appointed; also subject to the
right given by the constitution to alter the territory in
which he exercises his functions, though as a result his
compensation is reduced or he is deprived of his office."
     In Ward v. Bond, 10 S.W.2d 590 (Tex.Civ.App. 1928, no
writ), it was held that an order redistricting a county was
not invalidated by the fact that it resulted in putting
commissioners, who formerly lived in other precincts and who



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Hon. Holiis Garmon, page 3 (?/i-500)


had been nominated for re-election, in the same precinct,
thus making it impossible for one of them to be re-elected.
     Article XVI, Section 14 of the Texas Constitution,
requiring all district :>rcounty officers to reside within
their district or county and orovidina for vacation of
office upon failure to do is self-enacting. Prince v.
Innman, 280 S.W.2d 779 (Tex.Civ.App. 1955, nom
-on      v. Chesshir, 316 S.W.2d 909 (Tex.Civ.Ap   1958,
rev. on otner grounds, 159 Tex. 359, 320 S.W.2d i'
                                                 14).
     In Lamb v. S",ate,267 S.W.2d 285 (Tex.Civ.App. 1954,
no writ),9the following comment was made:
          "4rticle 16, B 14, on the other hand
     relates to the office primarily, rather than
     to the individual occupying the same. In the
     event a certain state of facts exist, the
     constit&ional mandate imperatively declares
     the office vacant."
     In Chambers v. Baldwin, 282 S.W. 793 (Tex.gmmnmtEp.
Section D. 192b). the basic facts were these:
was elected fris&ict Attorney for the 6th Judicial District,
composed of Fannin, Lamar and Red River Counties. At the
time of his election and qualification, end at the time
the suit was commenced, Baldwin resided in Lamar County.
After Baldwin took the office of District Attorney of the
6th Judicial District, the Legislature passed an Act creating
the 102nd Judicial District, composed of Red River and
Bowie County. Red River County was taken out of the 6th
District, end'the 6th District was continued to be there-
after composed only of the Counties of Lamar and Fennin.
The Legislature further provided that the District Attorney
of the 6th Judicial District should prosecute all criminal
cases in the 102nd Judicial District Court while sitting
in Red River until the expiration of his present term of
office. The Court,  citing Section 7 of Article V of the
Constitution of Texas, held that the Legislature had a perfect
right to change the 6th Judicial District by taking Red River
County therefrom. The Court further observed that for reasons
satisfactory to themselves, the people of our State have decreed
that a District Attorney must reside within his district; and
the Court held:




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Hon. Hoilis Garmon, page 4 (M-500)


     "Sincf3the ConstitutLya, art. 16, B 14, requires
     a district attorney to reside finhis district,
     and since Red River county is no longer in the
     Sixth district, the Legislature was without power
     to autho.rizethe district attorney of the Sixth
     distr,ictto exercise %he Duties of his office in
     Red River cmaney.”
     We oerceive nothing in your situation which extricates
it f:om che teeth ok,
                   p the iloldingin Chambers v. Baldwin,
supra, and 'thelegal principles announced in that decision
make mandatL)ryour conclusion that the vacancy now exists
in the office :>fDistrict Attorney of the 8th Judicial
District of Texas.
      As to the office of District Attorney of the newly
created 196th Judicial District, It is the opinion of this
office that you are not the District Attorney of such
Distr:.ct,ei%er de jure or &Aef%cto. You were not elected
to the office of District Attorney of the 196th District,
and you have not been appointed tcthat post. Furthermore,
as far as we :know,no one has been appointed to that par-
ticular office. Since no one has ever held the office, it
is impossible for you or anyone else to be a successor. A
successor is defined as one that succeeds or follows, one
who takes the place that another has left, one who has been
appointed or elected to ho7-?an nf,P!.ceafter the term of the
present encumber.t. See Thum son J. North Texas National
       2';S.W.2d 735 (Tex??%%&p.
Bank, JI                            1931). Under these
circums':ar:cesthe on1.vofff'icer
                                whc can nerform the orosecu-
ting attocvley'sfunctions .inHunt County is the County
Attorney el'Hunt Coun';y,who may represent the State in all
cases in the district and inferior courts until such time
as the office of DistrQt Attorney for the 196th Judicial
District is properly filled. Article V, Section 21 of the
ConstitufLon of Texas; Chambers v. Baldwin, supra.
     ColJAxral  to,your opinion request this office has
also received an inquiry from the Honorable Robert S. Calvert,
Comptroller of Public Accounts of the,State of Texas, asking
our opinion as to whether he can legal1 disburse to you the
salary of the District Attorney of the 5 th Judicial District
of Texas after September 19, l.96g5the effective date of
Senate Bill 22.




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Hon. Hollis Garmon, page 5 (l+500)


     The facts contained in your opinion request reflect
that you were a resident of Hunt County on September 19,
1969, and have continued to reside in Hunt County, without
any intention to establish your residence anywhere else.
It has also come to our attention that on October 2, 1969,
you qualified as District Judge of the new 196th District
in Hunt County, and in order to do so you were required to
be a permanent resident of said County.  Hence we have
before us a state of facts under which in the language of
Lamb v. State, supra, "the Constitutional mandate impera-
tively declares the office vacant." We therefore conclude
that the Comptroller is not legally authorized to disburse
to you the salary of District Attorney of the 8th Judicial
District after September 19, 1969.

                     SUMMARY
      Under Senate Bill 22, Acts 1969, 6lst
      Legislature, Second Called Session, effective
      September 19, 1969, Hunt County was removed
      from the 8th Judicial District of Texas and
      was made the territory of the newly created
      196th Judicial District of Texas; therefore,
      under the provisions of Section 14 of Article
      XVI of the Constitution of Texas there exists
      a vacancy in the office of District Attorney of
      the 8th Judicial District of Texas under cir-
      cumstances where the duly elected District
      Attorney of said 8th Judicial District resided
      in Hunt County on the effective date of Senate
      Bill 22, has resided in Hunt County since that
      time, and continues to so reside. Until such
      time as a person is appointed and qualified to
      the office of District Attorney of the newly
      created 196th Judicial District of Texas, no one
      has authority or color of authority to act in
      such capacity, and the duties of prosecuting
      attorney for Hunt County must be fulfilled by
      the County Attorney of that County until such
      time as the office of District Attorney is filled
      by appointment. Under the facts submitted, the
      Honorable Hollis Garmon was a non-resident of the
      8th Judicial District of Texas on and after
      September 19, 1969; therefore, the office of said




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Hon. Hollis Garmon, page 6 (M-500)


     District Attorney beeaTe vacant as of September 19,
     1%9, and the Comptroller is not authorized to
     disburse to said HolLis Garmon the salary of District
     Attorney of the 8th Judicial District after Septem-
     ber 19, 1969.




                                      General of Texas
AW:dc
Prepared by Alfred Walker
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
W, E. Allen
R. L. Lattimore
Louis G. Neumann
T. Ray McGregor
MElADEF. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant




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