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## 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 whoaoes not resiae in the precinct of his office. Youhave requested an opinion concerning the authorlty of the commissioners I court to approve the bond of ajustice of the peace uhodoes not reside in the precinct of his office.

Section 

## 18of Article V, Constitution of Texas, provides:

“Each organized county in the State nowor hereafter existing, shall be divided from time to time, for the convenience of the people, Into precincts, not less than four andnot morethan eight. Thepresent County Courts shall makethe first division. Subsequent divisions shall be madeby the Commissioners’ Court, provided for by this Constitution. In each such precinct there shall be elected at each biennial election, onejustice of the peace and one constable, each of whomshall hold his office for two years anauntil his successor shall be elected andqualified; provided that in anyprecinct in which there maybe a city of 8000 or more inhabitants, there shall ;e elected twojustices of the peace. a

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

“Iioperson 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, andunless he shall have resided In 

## 293

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

this State for the period of twelve (12) months andsix (6) months in the county, precinct, or municipality, in which he offers himself as a candidate, next preceding any general or special election, andshall have been an actual bona fide citizen of said county, precinct, or municipality for more than six (6) months. Woperson inellglble to hold office shall ever have Ns nameplaced upon the ballot at anygeneral or special election, 0~ at any primary election where candidates are selected Under primary election laws of this State; andno such ineligible candidate shall ever be voted upon, nor have votes counted for him, at any such general, special OPprimary election. Noperson, whoadvocates the overthrow by force or violence or the change by unconstitutional meansof the present constitutional form of government of the United States or of this State, shall be eligible to have his or her name printed onany official ballot in anygeneral, special, or primary election in this State .e Theprovisions of Article 2927, above quoted, require that a precinct officer be a resident for aperiod 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 andhas assumedandperformed the duties of his office for the last twenty-five years. Underthese circumstances, it is our opinion that he is at least a de facto officer wunt.11ejected In a proceeding having that object directly in view.” Aulanier v. TheGovernor, 1 Tex. 653, 666 (1846); Williams v. Castleman, 112Tex. 193 247S.W. 263 (1922).

Williams v. Castleman held that onewhowas ineligible to

’ fill the office of justice of the Peace because hehad not resided in the precinct SIXmonths prior to the date of his appointment becameat least a de facto officer by virtue of his appointment andentering 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 onejustice of the peace, styled in this title sjustice,8 whoshall hold his office for twoyears. Eachjustice shall give bond payable to the county judge in the sumof one thousand dollars, condItioned that he will faithfully andimpartially discharge the duties required of himby law, anawill promptly pay over to the party entitled to receive it, all moneys that maycomeinto his hands during his term of office." Article 2373, it is noted, does not state with whomthe bond of the justice of the peace should be filed andapprovea, nor is there any other statutory provls$,on setting out this duty. .It Is our opinion, however, tliat the commissioners Bcourt~has the implied authority to approve abona executed by ajustice of the peace in conformity with the provisions of Article 

### '2373.

Section 20 of Article III, Constitution of Texas, provides that noperson whoat any time mayhave 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, 

### 73Tex. 

### 68, E 11S.W. 

### 877 hat it wasnot 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 mayhave been before the Comptroller which showed that the assessor-collector had not obtained his discharge for the moneys collected by himas required by Section 20of Article III.

It is therefore our opinion that the connnissloners 1court cannot determine the eligibility of the nerson in question for the office of justice of the peace in approving 

### OFdisapproving the bond, but its sole function Is to pass upon the bond andapprove it if it is in conformity with the statute. SlIMNARY Thecommissioners8 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, 73Tex;, 648, 11S.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, PRICEDAHIEL Attornef General

John Reeves Assistant