TEIE ATTORNEY GENE=L 

OF I’EXAS 

GROVER SELLERS AUSTIN IL T~xacr 

Hon. Thos. J. Hightower 

D,lstrlct Attorney 

75th Judicial District 

Liberty, Texas 

Dear Sir: Opinion No. O-7194 

the 

You also stated in answer to our letter for additional 

. .I. -. . information tnat tne person reserrea to In your request was 

seeking the office of sheriff of Liberty County, Texas. 

Rk: Whether or not a person who has 

been adjudged a non compos mentis 

and who cannot read and write the 

English language be entitled to 

have his name placed on the Democratic ticket for the office of 

Sheriff of Liberty County, Texas 

Your request for an opinion from this department on 

above subject matter is as follows: 

"Would the fact that a person who has been adjudged 

a non compos mentis and who has not gone through the proper procedure to have this conviction set aside and one 

who cannot read and write the English language be a bar 

to having his name placed upon the Democrat ticket for 

a County Office?" 

We know of no provisIon in the Constitution or 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 person who has been adjudged insane to have his 

name placed upon the Democratic ticket, we call your attention 

to the following provisions: 

Art. 6866, V.A.C.S., provides: 

"Every perosn 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 approved by the Commissioners' Court of his county, 

for such sum as may be directed by such court, not less 
Hon. 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 authorized by 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 lawfully directed, 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 faithfully perform all 

such duties as may be required of him by law, and further 

conditioned that he will pay over to his county all 

moneys illegally paid 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 indorsed on said bond, together with the certificate 

of the officer administering the same. When any person 

elected or appointed sheriff, in accordance with 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 shall be 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 shall be responsible on their official bond or 

personally by reason of having received from or confined 

any prisoner delivered or surrendered to them by any 

State Ranger." 

Articel 6867, V.A.C.S., states that: 

"When any person elected sheriff shall neglect, refuse or fail from any cause whatever to give bond and take 

the official oath within twenty days aft$r notice of his election, the office shall be deemed vacant. 

It will 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 

. . . .Oaths of 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 invocation of 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 affirmation may be substituted for an 

oath. 

"The administering of an oath in legal form 1s regarded not only as the hlghest test of truth, but as an 

instrument appropriated by 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 testimony under the influence of Its 

sanctity." 

In Vaughn v. State, 177 S.W. (2d) 59, the Court of 

Criminal Appeals In distinguishing the difference between an 

"affidavit ' and "oath" used the following language: 

"An oath is any form of attestation by 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 foregoing authorities that it 

1s the purpose of an official oath to bind the conscience of 

the person taking the oath to perform an act faithfully and 

truthfully. We think it Is elementary that this purpose could 

not be accomplished by an Insane person taking an oath. Therefore, it is our opinion that an insane person cannot take the 

offlclal oath as prescribed by Article 6867, supra. 

"A bond 1s an obligatory instrument in writing whereby 

one binds himself to another to pay a sum of money or do some 
Hon. Thos. J. Hightower, page 4 O-7194 

other act. It is what binds; therefore an instrument in 

writing that legally binds a person to do a certain thing 

may be called 8 bond. In this sense, the ,term implies nothing more than a contract." 7 Tex. Jur. 57 and 58. 

"Bonds are construed in accordance with the rules 

governing the construction of written contracts." 7 Tex. 

Jur. 82. 

Since a bond is construed in accordance with the 

rules governing written contracts Andy is In fact a special 

type of contract, we call your attention to the following 

quotation from 24 Tex. Jur. pp. 380-382: 

'AS a general rule the contracts of a person of unsound mind, like those of an infant, are voidable, but 

not absolutely void. They may not be impeached collaterally, and they are subject to ratification. 

"A different rule obtains, however, with respect to 

the contracts of a person who has been placed under 

guardianship, pursuant to a valid judgment of insanity. 

'Such a person, whilst under legal and subsisting guardianship, and in support of his guardian's authority, is 

conclusively presumed incompetent to contract, and his 

deed, as against his guardian is absolutely void.' There 

is reason to believe that, even in the absence of guardianship, a person who has been adjudged insane should be 

considered utterly lncaoable of making a binding contract." 

(Underscoring ours) 

Article 5998, V.A.C.S., provides: 

"The offlclal bond of each officer shall be executed 

by himwith two or more good and sufficient sureties ora 

solvent surety company authorized to do business in this 

State." (Underscoring ours) 

We believe it Is obvious from the foregoing that an 

insane person does not have the mental 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 from what we have already said 

that an insane person is lnellglble to hold the office of 

sheriff since he cannot take the official oath and give bond 

as required by Articles 6866 and 6867, supra. 

In 24 Tex. Jur. pp. 415 and 416, we find the following: 
Hon. Thos. J. Hightower, page 5 O-7194 

,1 

. . . . .the law 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 existance of Insanity at a particular time 

raises a rebuttable presumption of the continuance thereof, and places on the party who asserts a restoration of 

reason the burden of proving that sanity had been in fact 

restored. Stated in the language of authority: 

"Three rules seem to be fairly well 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: Insanity admitted 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 party maks'F&.) 

(Morse v. State, 68 Crlm. App. 351, 152 

We note the following discussion 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 

cause No. 7870 recites that the court found that John R. 

Williams was sane at the time he executed ,the instrument 

sought to be cancelled, that such finding raised a legal 

presumption of sanity at all subsequent dates, therefore 

it must be presumed that John R. Williams was sane at the 

time of the trial. Counter to this contention plaintiff 

contends that the judgment of the county court of Gregg 

County rendered In 1909 adjudging John R. Williams insane 

legally established the status of John R. Williams as that 

of an insane person and that proper verity given to that 

judgment conclusively affirms the issue of his lnsanlty 

at all sebsequenttimes until he has been restored to 

sanity by judgment of the county court In a proceeding 

instituted for that purpose as authorized by the restoration statute. Prior to the enactment of the restoration 

statute it was held that such a judgment of insanlty, as 

against strangers thereto, created a rebuttable presumption of insanity; that is, 'prima facie 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 enactment of the restoratlon statute changed 

the effect of 8 judgment of insanity from a rebuttable 

presumptlon to a conclusive presumption. It is our 

opinion that the restoration statute merely provided a 

remedy for permanently removing the existing rebuttable 
Hon. Thos. J. Hightower, page 6 O-7194 

presumption of insanity. Therefore we think that the 

judgment of the counts court of Gregg County adjudging 

John R Williams insane has the legal effect of constituting a continuous rebuttable presumption of lnsanity, effective at any time the issue Is raised and 

continues to have that force and effect until 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 conveyance does not have the 

legal effect of a judgment of the county court restoring 

his status of sanity, so as to raise the presumption of 

sanity at the time the judgment was rendered in cause 

No. 7870." (Underscoring ours) 

In Bogel v. White, 168 S.W. (2d) 309 (writ refused) 

the Court of Civil Appeals affirmed the judgment of the trial 

court in refusing to admit a will to probate,on the ground 

that the deceased was insane and did not possess ~testamentary 

capacity to execute a valid and legal will. We quote the 

following language from said case. 

"This court, however, falls to see how the 1915 retrial of the deceased, however invalid it may have later 

turned out to have been, could have obliterated the stillsubsisting judgment of Insanity generally against him, 

of April 20 of 1910, which had never been contested, appealed from, nor otherwise removed; 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 jurisdiction with full 

power in the premises, as this court reads the authorities, 

the insanltv therein so determined to exist was presumed 

by law to continue until the unfortunate victim's status 

as to sanity was changed by a subsequent judgment of a 

county court, in a proceeding authorized for that uurpose 

by the 'restoration statute. 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-Prairie Oil Co., 

Tex. Div. App., 

476, 

135 S.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." (Underscoring ours) 

Article 2927, V.A.C.S., reads RS follows: 

'NO person shall be ellglble to any State, county, 

precinct or munlclpal office in this State unless he shall 

be eligible to hold office under the Constitution of this 

State, and unless he shall have resided in this State for 
Hon. Thos. J. Hightower, page 7 O-7194 

the period of twelve months and six months in the county, 

precinct, or munlclpalitg, in which he offers himself 

as a candidate, next preceding any general or special 

election, and shall have been an actual bona fide citi- 4 zen of said county, precinct, or municipality for more 

than six months. 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 candidates are selected under 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: 

"Neither the 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 Constltutlon of this State 

and under the above article; and the name of no ineligible 

person, under the Constitution and laws of this State, 

shall be certified by 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 ineligible candidate under the 

Constitution and laws of this State shall be Placed uDon 

the ballot of any general or soeclal election bg ang authority whose duty it Is to olace names of candidates 

uoon official ballots." (Underscoring ours.) 

In view of the foregoing, It is the opinion of this 

department that so long as the presumption of insanity has not 

been overcome in a proper proceeding, a person who has been 

adjudged Insane would not be entitled to have his name placed 

upon the Democratic ticket as a candidate for sheriff. 

We trust that we have satisfactorily answered 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/John Reeves 

John Reeves 

JR:djm:wc 

APPROVED APRIL 30, 1946 

s/Carlos C. Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Oplnlon Committee By s/BWB Chairman 

This Opinion Considered And Approved In Limited Conference