. - 

THE 

~~TEXAS 

Hon. Jack M. Allen 

County Attorney 

Ochiltree County 

Perryton, Texas 

Dear Sir: 

Opinion No. V-1164 

Re: Authority of the commissioners1 aourt to 

approve the bona of a 

justice of the peace 

who aoes not resiae in 

the precinct of his 

off ice. 

You have requested an opinion concerning the authorlty of the commissioners I court to approve the bond of 

a justice of the peace uho does not reside in the precinct 

of his office. 

Section 18 of Article V, Constitution of Texas, 

provides: 

“Each organized county in the State 

now or hereafter existing, shall be divided 

from time to time, for the convenience of 

the people, Into precincts, not less than 

four and not more than eight. The present 

County Courts shall make the first division. 

Subsequent divisions shall be made by the 

Commissioners’ Court, provided for by this 

Constitution. In each such precinct there 

shall be elected at each biennial election, 

one justice of the peace and one constable, 

each of whom shall hold his office for two 

years ana until his successor shall be elected and qualified; provided that in any precinct in which there may be a city of 8000 

or more inhabitants, there shall ;e elected 

two justices of the peace. a . . 

Article 2927, V.C .S -, provides: 

“Iio person shall be eligible to any 

State, county, precinct or municipal 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 

293 
294 Hon. Jack PI. Allen, page 2 (V-1164) 

this State for the period of twelve (12) 

months and six (6) months in the county, 

precinct, or municipality, in which he offers himself as a candidate, next preceding 

any general or special election, and shall 

have been an actual bona fide citizen of 

said county, precinct, or municipality for 

more than six (6) months. Wo person inellglble to hold office shall ever have Ns 

name placed upon the ballot at any general 

or special election, 0~ at any primary election where candidates are selected Under 

primary election laws of this State; and no 

such ineligible candidate shall ever be 

voted upon, nor have votes counted for him, 

at any such general, special OP primary 

election. No person, who advocates the 

overthrow by force or violence or the 

change by unconstitutional means of the 

present constitutional form of government 

of the United States or of this State, 

shall be eligible to have his or her name 

printed on any official ballot in any general, special, or primary election in this 

State .e 

The provisions of Article 2927, above quoted, 

require that a precinct officer be a resident for a period of six months next preceding the date of election 

in the precinct of his office. Although the justice of 

the peace referred to in your request has not been a resident in the precinct of MS office, you state that he 

has been elected and has assumed and performed the duties 

of his office for the last twenty-five years. Under these 

circumstances, it is our opinion that he is at least a de 

facto officer wunt.11 ejected In a proceeding having that 

object directly in view.” Aulanier v. The Governor, 1 

Tex. 653, 666 (1846); Williams v. Castleman, 112 Tex. 193 

247 S.W. 263 (1922). 

Williams v. Castleman held that one who was ineligible to’ fill the office of justice of the Peace because he had not resided in the precinct SIX months prior 

to the date of his appointment became at least a de facto 

officer by virtue of his appointment and entering Upon 

the auties of the office. 

Article 2373, V.C.S., provides’ 
Hon. Jack Ea. Allen, page 3 (V-1164) 

"The qualified voters of each justice precinct.in this State, at each biennial election, 

shall elect one justice of the peace, styled 

in this title sjustice,8 who shall hold his office for two years. Each justice shall give 

bond payable to the county judge in the sum of 

one thousand dollars, condItioned that he will 

faithfully and impartially discharge the duties 

required of him by law, ana will promptly pay 

over to the party entitled to receive it, all 

moneys that may come into his hands during his 

term of office." 

Article 2373, it is noted, does not state with 

whom the bond of the justice of the peace should be filed 

and approvea, nor is there any other statutory provls$,on 

setting out this duty. .It Is our opinion, however, tliat 

the commissioners B court~has the implied authority to 

approve a bona executed by a justice of the peace in conformity with the provisions of Article '2373. 

Section 20 of Article III, Constitution of 

Texas, provides that no person who at any time may have 

been a collector of taxes shall be eligible to any office of trust or profit under the State government until 

he shall have obtained a discharge from the amount of 

such collection. In construing this rovlsion, it was 

g;gdgn OglesbyJs v. State, 73 Tex. 6 E 8, 11 S.W. 877 

hat it was not the duty of the Comptroller s 

office'to determine the question of eligibility for the 

office of assessor-collector in approving 0~ aisapproving his bond, although evidence may have been before the 

Comptroller which showed that the assessor-collector had 

not obtained his discharge for the moneys collected by 

him as required by Section 20 of Article III. 

It is therefore our opinion that the connnissloners 1 court cannot determine the eligibility of the 

nerson in question for the office of justice of the 

peace in approving OF disapproving the bond, but its 

sole function Is to pass upon the bond and approve it 

if it is in conformity with the statute. 

SlIMNARY 

The commissioners8 court cannot determine the eligibility of an individual to 
296 

Hon. Jack M. Allen, page 4 (V-1164) 

hold the office of justice of the peace in 

approving or disapproving his bond, but its 

sole function is to pass upon the bond ana 

approve it if it is in conformity with ATtitle 2373. Oglesby's v. State, 73 Tex;, 

648, 11 S.W. 873 ~(U.389). 

APPROVgD? 

J. C. Davis, Jr. 

County Affairs Division 

Jesse P. Luton 

Reviewing A+.stant 

Charles D. Mathews 

First Assistant 

JR:mw 

Yours very truly, 

PRICE DAHIEL 

Attornef General 

John Reeves 

Assistant