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 

We quote the following from your letter to the 

Bon. T. 0. Finley, County Judge of Fannln Count p, ‘~ in 

uhlab you requeast aa opinion from this Department on the 

above subject matter: 

-our verbal .request submitted yeeterday presents ‘for the opl~&Io~ of this @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 ai Whitevrlght 

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 my understanding that the follovlag are the fasts of this ca.se aad I am presuming that these facts are true, to-vlt: 

Fletobrr! WIlllams was duly elected a&d qualIfled as Justice. of the Peaoe 02 Preelmct go. 

2 of 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, 1946 he 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 

ooullt y. 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 know vhea he vi11 

move back to it. Nr. Williams pays all of 

his tawe In Fannln County au4 votes at Savoy. 

Hr. Wllliaw 414 not seek n-election to the 

oiflee of Just lco of the Puoe at the oloctiow held IP 1946, bat the ~OPlO or his pmclwt vroto hi8 maw 00. the ballet ati he va8 

re-electod to tlu raid offlco. I* hu, M 

puallfled as said Justice of the Poaee. * 

It Is aotod that the pewou id question kas 

beon elected and qualified as Justice of the Peace of 

Pru@ct 2 of Fannln County and is at the present tlw 

holding said office. 

Wo quote the follovlng from our recent oplnloa 

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

“biaae the person la 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 quest lo& 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 

a jury as provided in Artiole V, Section 24 of 

our State Coaatitutioa aa& Artlole 5971 of our 

utat utes . ’ 

In vlev of the foregoing, it Is our opinion 

that so long as the person in question has not been removed from office in a proper proceeding, there is no 

vacancy in said offlce. 

We would lika to point out, however, the follow lng : 

. . 

.: 
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 

Ooumty Judge of this Stats, nsr any ether 

‘&u$hority authorlsbd to issue oertlflo8te8, 

shall 188~ say-esrtlficates 0s e~octioa or 

8))olatwmt to uy psrssn l lebted or ~amaoiotod 

to any ~fflcs IU this State, the is pot l llglb10 to km14 suoll eifloo M&W &s Csut ltutloa of this Sta te lnd under 

sa4 t&a aaw~ 0s us lzwllglble 

tkrrt~~~Ctlef 

be cortifled by any party c&tt*d 

tlie gs8st ltut ion aad lavs of t 16 b&s, shall 

or ant 

authorlty author!lsod to h&o tias ciads ,oi oaa614~toa pl8cs& up08 the )rlmavf ballots nt~aay 

p ewr y l la o tlin w th lSta a tsad 2 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, among other thilPgs, 

that “the rssldeace of a single man la where he uSuallg 

sleeps at night; that of a marrlod man la 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 man Is 

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 

a wrrled i&an’s residence is la the city in vhieh 

his vise realdea, and in vhloh she oarea for 

thmlr children. But no matter how fam.lllea may 

bs situated, they are not held to have abandoned 

their residence la a given colloPlunlty wnly 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 thtm elaevhera for varying 

periods of tlau . . . 

. 

I’ 

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

., ~' 

‘Article 2958 defines the ~rosldeace~ 

OS a married man, vlthln ‘tti meaning of ths 

~olectlon lavs, to be vhere his Vlfe re~l&ts, 

ualosa he be permanently separated from her, 

and hid residence is conslderod to be la 

that place ualeaa a contention is 

he resides elsevhere, 16~Tex. Jur, 3 

da that 

40. When a contention Is plade that a3%e* 

wn’s residence Is la aow place othor than 

IS the person in questlou, aa a wtter of 

fact, had actually abandoned his residence In Precinct 

2 of 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, and would 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, ,and moved to 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. TS the Wrson.ln question had actually abandoaed his residence in Preclnot 

2 of Faanln Count g prior to the t lme of the 

electloa and vaa 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 aU would not be eligible to quallfy far arid office. This preaenta a factA;t6atple urCvh&ah this off ice cannot pass. . 

, . . . 

Yours very truly, 

ATTO- @lU&lUL Op !CXU 

JB:djm:mrj 

Enaloaure