TEIE ATTORNEY GENE=L OF I’EXAS

GROVER SELLERS AUSTIN IL T~xacr

Hon. Thos. J. Hightower D,lstrlct

Attorney 75th JudicialDistrict Liberty, Texas
Dear Sir: OpinionNo. O-7194

the

You also stated in answer to our letter for additional

. .I. -. . informationtnat tne person reserrea to In your request was seeking the office of sheriff of Liberty County, Texas. Rk: Whether or not a personwho has been adjudged a non composmentis and who cannot read and write the English languagebe entitled to have his name placed on theDemocratic ticket for the office of Sheriff of Liberty County, Texas
Your request for an opinion from this department on above subjectmatter is as follows: "Would the fact that a personwho has been adjudged a non composmentis and who has not gone through the proper procedure to have this conviction set aside and one who cannot read and write the English languagebe a bar to having his name placed upon theDemocrat ticket for a County Office?"

We know of no provisIon in the Constitutionor statutes of this State requiring a candidate for the office of sheriff to be able to read and write the English language.

With reference to your question concerning the eligibility of a personwho has been adjudged insane to have his name placed upon theDemocratic ticket,we call your attention to the following provisions:

Art. 6866, V.A.C.S., provides: "Everyperosn elected to the office of sheriff shall, before entering upon the duties of his office, give a bond with two or more good and sufficient sureties, to be approvedby the Commissioners'Court of his county, for such sum as may be directed by such court, not lessHon. Thos. J. Hightower, page 2 

### O-7194

than Five Thousand ($5,000.00)Dollars nor more than Thirty Thousand ($30,000.00)Dollars payable to the Governor and his successors in office, conditioned that he will account for any pay over to the persons authorizedby Law to receive the same, all fines, forefeitures and penalties that he may collect for the use of the State or any county, and that he will well and truely execute and make due return of all process and precepts to him lawfullydirected, and pay over all sums of money collected by him by virtue of any such process or precept, to the persons to whom the same are due, or their lawful attorney, and that he will faithfullyperform all such duties as may be required of him by law, and further conditioned that he will pay over to his county all moneys illegallypaid to him out of county funds, as voluntary payments or otherwise,and said sheriff shall also take and subscribe the official oath,which shall be indorsedon saidbond, togetherwith the certificate of the officer administering the same. When any person elected or appointed sheriff, in accordancewith this Article, shall have given bond and taken his official oath, he may enter at once upon the discharge of his duties, and his acts shallbe as valid In Law before receiving his commission as afterwards; said bond shall not be void on the first recovery, but may be sued on from time to time In the name of any person injured until the whole amount thereof Fs recovered; provided, however, that no sheriff or his duly and legally appointed deputies shallbe responsible on their officialbond or personallyby reason of having received from or confined any prisonerdelivered or surrenderedto them by any State Ranger." Articel 

### 6867,V.A.C.S., states that: "Whenany person elected sheriff shallneglect, refuse or fail from any causewhatever to give bond and take the official oathwithin twenty days aft$r notice of his election, the office shallbe deemed vacant.

Itwill be noted that by virtue of the foregoing statutes a candldate for the office of sheriff, if elected to that office,must take the official oath and give bond within twenty days after notice of his election.

ArtLcle 

### 25;V.A.C.S., provides: "All oaths and affirmations shall be administered In the mode most binding upon the conscience of the individual taking same and shall be subject to the plains and penalties of perjury.". .

Hon. Thos. J. Hlghtower, page 

### 3 O-7194

Article 

### 305,V.A.P.C., provides: ,I

. . . .Oathsof office, or any other promissory oaths, are not included In the definition of perjury, except that part of the official oath which relates to dueling."
We quote the following from 39 Amer. Jur. pp. 494 and 495:
"In Its broadest sense, an oath 1s any form of attestation by which a person signifies that he is bound In conscience to perform an act faithfully and truthfully. It Involves the idea of calling on God to witness what 1s averred as truth, and It is supposed to be accompanied with an invocationof His vengeance, or a renunciation of His favor, In the event of falsehood. The word "oath' has been construed in include 'affirmation'in cases where?,

by law, an affirmationmay be substituted for an oath. "Theadministering of an oath in legal form 1s regarded not only as the hlghest test of truth, but as an instrumentappropriatedby the law for its ascertainment in judicial Investigations. It purpose is to purge the conscience and lmpress the witness with a due sense of religious obllgatlon, so as to secure the purity and truth of his testimonyunder the influenceof Its sanctity."
InVaughn v. State, 

### 177S.W. (2d) 59, the Court of CriminalAppeals In distinguishing the differencebetween an "affidavit'and "oath"used the following language:

"Anoath is any form of attestationby which a person slgnlfies that he 1s bound in conscience to perform an act faithfully and truthfully. The difference between an affldavlt and an oath Is that an affidavit consists of a statement of fact,which is sworn to as the truth,whlle an oath Is a pledge. 39 Am. Jur. 494."
It is apparent from the foregoingauthorities that it 1s the purpose of an official oath to bind the conscienceof the person taking the oath to perform an act faithfullyand truthfully. We think it Is elementary that this purpose could not be accomplishedby an Insane person taking an oath. Therefore, it is our opinion that an insaneperson cannot take the offlclal oath as prescribedby Article 

### 6867, supra.

"Abond 1s an obligatory instrument inwriting whereby one binds himself to another to pay a sum of money or do someHon. Thos. J. Hightower, page 4 O-7194

other act. It iswhat binds; therefore an instrument in writing that legallybinds a person to do a certain thing may be called 8 bond. In this sense, the ,termimpliesnothingmore than a contract." 

### 7 Tex. Jur. 

### 57 and 

### 58.

"Bondsare construed in accordancewith the rules governing the construction ofwritten contracts." 

### 7 Tex. Jur. 82.

Since a bond is construed in accordancewith the rules governingwritten contractsAndyis In fact a special type of contract,we call your attention to the following quotation from 24 Tex. Jur. pp. 380-382:

'ASa general rule the contracts of a person of unsoundmind, like those of an infant,are voidable,but not absolutely void. They may not be impeached collaterally, and they are subject to ratification.
"Adifferent rule obtains, however,with respect to the contracts of a personwho has been placed under guardianship,pursuant to a valid judgment of insanity. 'Sucha person,whilst under legal and subsistingguardianship,and in support of his guardian's authority, is conclusivelypresumed incompetentto contract, and his deed, as against his guardian is absolutely void.' There is reason to believe that, even in the absence of guardianship,a personwho has been adjudged insane shouldbe consideredutterly lncaoable of making a binding contract." (Underscoringours) Article 5998,V.A.C.S., provides: "Theofflclalbond of each officer shallbe executed by himwith two or more good and sufficient sureties ora solvent surety company authorized to do business in this State." (Underscoringours)
We believe it Is obvious from the foregoing that an insaneperson does not have themental capacity to be a party to a bond contract 8s required by Art. 5998 and, therefore, could not execute .a valid bond.
It necessarily follows fromwhat we have already said that an insaneperson is lnellglbleto hold the office of sheriff since he cannot take the official oath and give bond as required by Articles 

### 6866and 6867, supra.

In 24 Tex. Jur. pp. 415 and 

### 416,we find the following:Hon. Thos. J. Hightower, page 

### 5 O-7194

,1

. . . . .thelaw indulges a disputable presumption of sanity,and casts on the party who alleges insanity the burden of proving his contention. On the other hand, proof of the existanceof Insanity at a particular time raises a rebuttablepresumption of the continuance thereof, and places on the party who asserts a restorationof reason the burden of proving that sanity had been in fact restored. Stated in the language of authority: "Three rules seem to be fairlywell stated in this connectlon:~ It Is the presumption of law that all men are sane, and the burden to prove insanity is on the party alleging. This is the first rule. The second is: Insanityadmitted or once proved to exist is presumed to continue. Third. If a recovery or a lucid interval is alleged to have occurred, the burden t;$

prove such allegation 1s on the partymak

### s'F&.) (Morsev. State, 

### 68 Crlm.App. 

### 351,152

We note the followingdiscussion of the effect of a judgment of insanity in the case of Williams, v. Sinclair - Prairie Oil Company (Dism.,Judgm, Cor.), 

### 135 S.W. (2d) 211:

"It is further contended that since the judgment in causeNo. 

### 7870recites that the court found that JohnR. Williams was sane at the time he executed,theinstrument sought to be cancelled, that such finding raised a legal presumption of sanity at all subsequentdates, therefore itmust be presumed that John R. Williams was sane at the time of the trial. Counter to this contentionplaintiff contends that the judgment of the county court of Gregg County rendered In 1909 adjudging John R. Williams insane legally establishedthe status of John R. Williams as that of an insaneperson and that proper verity given to that judgment conclusivelyaffirms the issue of his lnsanlty at all sebsequenttimesuntil he has been restored to sanityby judgment of the county court In a proceeding instituted for that purpose as authorizedby the restoration statute. Prior to the enactment of the restoration statute itwas held that such a judgmentof insanlty,as against strangers thereto, created a rebuttable presumption of insanity;that is, 'primafacie evidence of the mental unsoundness adjudged to exist.' Herndon v. Vick, 

### 18 Tex. Civ. App. 

### 583, 45 S.W. 

### 852. We do not think that the enactmentof the restoratlon statute changed the effect of 8 judgmentof insanity from a rebuttable presumptlon to a conclusivepresumption. It is our opinion that the restoration statutemerely provided a remedy for permanentlyremoving the existing rebuttableHon. Thos. J. Hightower, page 

### 6 O-7194

presumption of insanity. Thereforewe think that the judgmentof the counts court ofGregg County adjudging John R Williams insanehas the legal effect of constitutinga continuousrebuttable presumption of lnsanity, effectiveat any time the issue Is raised and continues to have that force and effectuntil his status of sanity Is adjudged to be restored by a judgment of the countv court in a aroceedlna authorized for that puruose by the restoration statute. Hence the finding of the court that John R. Williams was sane at the time he executed the conveyancedoes not have the legal effect of a judgmentof the county court restoring his status of sanity, so as to raise the presumption of sanityat the time the judgmentwas rendered in cause No. 

### 7870." (Underscoringours)
In Bogel v. White, 

### 168 S.W. (2d) 309 (writrefused) the Court of CivilAppeals affirmed the judgmentof the trial court in refusing to admit a will to probate,on the ground that the deceasedwas insaneand did not possess~testamentary capacity to execute a valid and legalwill. We quote the following language from said case.

"This court, however, falls to see how the 1915 retrial of the deceased, however invalid itmay have later turned out to have been, could have obliterated the stillsubsisting judgmentof Insanitygenerally against him, of April 20 of 1910,which had never been contested,appealed from, nor otherwiseremoved; in fact, since that was a general conviction for insanity,attended by the appointment of a guardian of the lunatic's estate, rendered by a court of competent jurisdictionwith full power in the premises, as this court reads the authorities, the insanltv therein so determined to existwas presumed by law to continueuntil the unfortunatevictim's status as to sanitywas changedby a subsequent judgmentof a county court, in a proceeding authorized for that uurpose by the 'restorationstatute. Vernon's Ann. Civ. St. art. 5561a, 

### 8 4 68 C.J 

### 452 Sec. 52;P. 

### 453,Sec. 

### 53, and p. 

### 454:Sec. 

### 54:gillla& v. Sinclair-PrairieOil Co., Tex. Div. App., 

### 476, 135S.W. 2d 211;Vance v. Upson, 

### 66 Tex. 1 S.W. 179; 

### 17 Tex. Jur. p. 

### 582,Sec. 242; Navorro v. Garcia, Tex. Civ.App., 172 S.W. 723; 

### 68 C.J., page 

### 478,Sec. 

### 86." (Underscoringours) Article 2927,V.A.C.S., reads RS follows:
'NOperson shall be ellglble to any State, county, precinct ormunlclpal office in this State unless he shall be eligible to hold office under the Constitutionof this State, and unless he shallhave resided in this State forHon. Thos. J. Hightower, page 

### 7 O-7194

the period of twelvemonths and six months in the county, precinct, or munlclpalitg, inwhich he offers himself as a candidate,next preceding any general or special election,and shallhave been an actual bona fide citi- 4 zen of said county, precinct, or municipality formore

than sixmonths. No Person Ineligible to hold office shall ever have his name DlaCed uoon the ballot at any general or soeclal election, or at any orlmary election where candidatesare selectedunder primary election laws of this State; and no such ineligible candidate shall ever be voted uoon, nor have votes counted fcr him, at any such general, special, or orlmarv election." (Underscoring ours) Article 

### 2928,V.A.C.S., provides: "Neitherthe Secretary of State, nor any county judge of this State, nor any other authority authorized to issue certlflcates, shall Issue any certificates of electlon or appointment to any person elected or appointed to any office In this State,who is not eligible to hold such office under the Constltutlonof this State and under the above article; and the name of no ineligible person, under the Constitutionand laws of this State, shallbe certifiedby any party, committee, or any authority authorized to have the names of candidates Dlaced uoon the primary ballots at any orlmarv electlon In this State; and the name of no ineligiblecandidate under the Constitutionand laws of this State shall be Placed uDon the ballot of any general or soeclal electionbg ang authoritywhose duty it Is to olace names of candidates uoon officialballots." (Underscoringours.)
In view of the foregoing, It is the opinion of this department that so long as the presumption of insanityhas not been overcome in a proper proceeding, a person who has been adjudged Insanewould not be entitled to have his name placed upon theDemocratic ticket as a candidate for sheriff.

We trust thatwe have satisfactorilyanswered your request.Ron. Thos. J. Hightower, page 8 

### o-7194

Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/J.A. Ellis J. A. Ellis Assistant By s/JohnReeves John Reeves JR:djm:wc

APPROVEDAPRIL 30, 1946 s/Carlos C.Ashley FIRST ASSISTANT ATTORNEYGENERAL Approved Oplnlon CommitteeBy s/BWB Chairman This Opinion ConsideredAnd Approved In Limited Conference