AUSYPIN~~.~&X~IB.

- Narch 20, 1947 ~’ j ;,

Dear 31r: 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, wider the facts submitted Wequote the following from your letter to the Bon. T. 0. Finley, County Judge of Fannln Countp, ‘~ in uhlab you requeast aa opinion from this Department on the above subject matter:

-our verbal .request submitted yeeterday presents ‘for the 

### opl~&Io~ ofthis 

### @Iice the follovlng question: Does the faot that Fletcher Wllllama has moved.Srorn 3avby’la Jortlce of the Peaae Precinct Ho. 2 of Fartnl& **COUBtyj** Texas, to the tovn 

### aiWhitevrlght vhlch Is in Grayson County, Texas, the 

### said Fletcher William bely Juatlce of the Pease of arid Preclnat go. 2 of Famln County, Texaa, vacate the office of JUstice of the Peace of **Precllrct** Ho. 2 of Fatmitt County?

“It Is myunderstanding that the follovlag **are** the fasts of this ca.se aad I ampresuming that these facts **are** true, to-vlt: Fletobrr! WIlllams was **duly elected**  **a&d qual**  Ifled as Justice. of the Peaoe 02 Preelmct go. 2of 

### Famln Oountg,‘Texas on.Jaatmry 1, 1945. At the time of his quallflcatlon and uatll l beut Jaauary 1, 1946, he lived In the tevta **.oi** Savog which vaa la said **Justice** Pmcla~t. That on or about January 1, 

### 1946he reated hi8 place to his mm-in-law so that his aonla-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 ooullty. 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 knowvhea he vi11 moveback to it. Nr. Williams pays all of his tawe In Fannln County au4votes at Savoy. Hr. Wllliaw 414 not seek n-election to the oiflee of Justlco of the Puoe at the oloctiow held IP 1946, bat the 

### ~OPlOorhis pmclwt vroto hi8 maw 00.the ballet ati he 

### va8 re-electod to tlu raidofflco. I* hu, M puallfled as said Justice of the Poaee.* It Is aotod that the pewou id question kas beon elected andqualified asJustice of the Peace of Pru@ct 2 of Fannln County and is at the present tlw holding said office.

Woquote the follovlng from our recent 

### oplnloa V-26, a copy of vhlch we are herewith enclorlug:

“biaae the 

### personla 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 l wlweata 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 parwat of saw.

n . . .

“In viev of the foregoing, it is Our oplaloa that the’ persoa la questlo& 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 ajury as provided in Artiole V, Section 24of our State Coaatitutioa aa&Artlole 5971 of our utatutes
.’ In vlev of the foregoing, it Is our opinion that so long as the person in question has not been removedfrom office ina proper proceeding, there is no vacancy in said offlce.

Wewould lika to point out, however, the followlng:

..

.: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 offlco under the Constltut ion of this State, and

ballot at any general or specihl election, or at l ay 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 OoumtyJudge of this Stats, nsr any ether

‘&u$hority authorlsbd to issue oertlflo8te8, shall 188~ say-esrtlficates 

### 0se~octioa or 8))olatwmt to uy psrssn l**lebted or**  **~amaoiotod to**  any~fflcs IUthis State, the is pot 

### lllglb10 to km14suoll eifloo M&W &s Csut ltutloa of this State l nd **under** sa4 t&a aaw~ 

### 0sus lzwllglble tkrrt~~~Ctlef
be cortifled by any party c&tt*d tlie gs8st ltut ion aad lavs of t 16b&s, shall or ant authorlty author!lsod to h&o tiasciads ,oi oaa614~toa pl8cs& up08 the )rlmavf ballots nt~aay 

### pewry l laotlw in thla Stats2

ad 

### the 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, amongother thilPgs, that “the rssldeace of a single manla where he uSuallg sleeps at night; that of a marrlod manla 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, provl$lng that the resldeaoe of a married manIs 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 

### awrrled i&an’s residence is la the city in vhieh his vise realdea, and in vhloh she oarea for thmlr children. But no matter howfam.lllea may bs situated, they are not held to have abandoned their residence la a given colloPlunltywnly beoauso the husband or vise or both temporarily l bnat themsolves on aocount **of** tholr ova health, or that of their children, or to serve their goverawnt, or because their trade or business or profession takes thtmelaevhera for varying periods of tlau

. . . .

I’

Wequote the Sollovl 

### frcot the case ,of Stratton vaT Hall,>99 3. W. 24 865,%6:

., ~'

‘Article 2958 defines the ~rosldeace~ OS

### amarried man, vlthln ‘tti meaning of ths ~olectlon lavs, to be vhere his Vlfe re~l&ts, ualosa he be permanently separated from her, andhid residence is conslderod to be la that place ualeaa 

### a contention is he resides elsevhere, 16~Tex. Jur,3 da that 40. Whena contention Is pladethat a3%e* wn’s residence Is la aow place othor than

IS the person in questlou, aa awtter **of** fact, had actually abandoned his residence In Precinct 2of 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, andwould 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 resldoace la Precinct 2, Faaaln CouatJr,,andmovedto Or&yaon County with the latontlo~ of eatabllshlug a nev 8ad permanent residence therein at the tlw, pr6sOatU questions 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. TSthe Wrson.ln question had actually abandoaed his residence in Preclnot 2 of Faanln Countg prior to the tlme of the electloa andvaa not an actual bona Side cltlwa of said precluat, he would not have been eligible for eledtion to t&e office of Justice of the Peace l

aUwould not be eligible to quallfy far arid office. This preaenta a factA;t6atple urCvh&ah this office cannot pass. .
, . . . Yours very truly,

ATTO- @lU&lUL Op !CXU

JB:djm:mrj Enaloaure