**. .** 



### EA 

## NEY GENERAL QFTEXAS

AUSTIN. **‘ l%XAS**  78711 **CRA,, ‘** **F ‘** **,RD ‘** **X MARTIN**  AlTORNEX OENERAL October 22, 1969

Honorable Hollis Garmon District Attorney 8th JudicialDistrict Post Office Box 111 Greenville,Texas 75401
Dear Mr. Garmon: OpinionNo. M- 500
Re: Status of Hunt County District Attorneyunder Senate Bill No. 22,Acts 1969, 61st Leg., 2nd C.S.

Your recent letter requests the opinion of this office concerningyour status as DistrictAttorney of the 8th JudicialDistrict of Texas in view of Senate Bill No. 22, Acts 1969, 61st Legislature, 2nd Called Session. Your specific question is:

"Am I disqualified to continue to serve as District Attorney of the 8th District consisting of Hopkins, Rains and Delta Counties, although I reside in Hunt County?"
Your letter also included the following facts and observations:

'1 reside in Hunt County. Article 332 Revised Civil Statutesprovides that the District Attorney shallbe a resident of the District. I do not reside in the existing 8th District Attorney's jurisdiction. "TheTexas Constitutionprovides that en officer continues to serve until his successor .hasbeen elected, appointed, or,qualified; therefore, I presume thatmy status as District Attorney of the 8th and 196th Districts continues simultaneouslyuntil appointments aremade." Prior to the enactment of Senate Bill No. 22, the 8th JudicialDistrict was composed of Hunt, Hopkins, Delta and Rains Counties,while the 62nd District was composed of Hunt, Lamar, Delta, Franklin and Hopkins Counties. You reside in Hunt County,were duly electedDistrictAttorney for the 8th

-2391-Hon. Hollis Garmon,page 2 (M-500)

JudicialDistrict at the last general election,and have been serving in that capacity.
Senate Bill 22 creates the 

### 196thJudicialDistrict which is composed of Hunt County only, and Hunt County is removed from the 

### 8thand 

### 62~ JudicialDistricts. Senate Bill 22 also creates the office of District Attorney for the 

### 196thJudicialDistrict.
As we understand the undisputed facts,you resided in Hunt County on the effective,dateof Senate Bill 22; you have resided in Hunt County since that time; and you are continuing to reside in Hunt County. Under these conditions, it is the opinion of this office that there exists a vacancy in the office of DistrictAttorney of the 

### 8th JudicialDistrict of Texas. Article XVI, Section 14 of the Constitution of provides: Texas

"All civil officers shall residewithin the State; and all district or county officers within their districts or counties, and shall keep their offices at suchplaces as may be requiredby law; and failure to complywith this condition shall vacate the office so held." Article 332, Vernon's Civil Statutes, in part, provides: 1,

. . .district and county attorneys shall reside in the district end county respectively, fox which they are elected;

. . .'I
In 

### 47 Texas Jurisprudence 26 20, Public Officers, Section 7, it is observed that a public officer

. . .holds subject to the right of the proper authority to abolish the office and thus oust him before the expiration of the term for which he was elected or appointed; also subject to the right given by the constitutionto alter the territory in which he exerciseshis functions, though as a resulthis compensation is reduced or he is deprived of his office."
In Ward v. Bond, 10 S.W.2d 590 (Tex.Civ.App.

### 1928,no writ), itwas held that an order redistrictinga countywas not invalidatedby the fact that it resulted in putting commissioners,who formerly lived in otherprecincts and who



### -2392-. .

Hon. Holiis Garmon, page 3 (?/i-500)

had been nominated for re-election, in the same precinct, thusmaking it impossible for one of them to be re-elected. Article XVI, Section 14 of the Texas Constitution, requiring all district :>rcounty officers to residewithin their district or county and orovidina for vacation of officeupon failure to do is self-enacting. Prince v. Innman, 

### 280 S.W.2d 779 (Tex.Civ.App.1955, nom -on v. Chesshir, 

### 316 S.W.2d 909 (Tex.Civ.Ap 1958, rev. on otner grounds, 159 Tex. 359, 320 S.W.2d 14). i'
In Lamb v. S",ate,

### 267 S.W.2d 

### 285 (Tex.Civ.App.1954, no writ),9the following commentwas made:

"4rticle 

### 16,B 14, on the otherhand relates to the office primarily, rather than to the individual occupying the same. In the event a certain state of facts exist, the constit&ional mandate imperativelydeclares the office vacant."
In Chambers v. Baldwin, 

### 282 S.W. 

### 793 (Tex.gmmnmtEp. SectionD. 192b). the basic facts were these: was elected fris&ictAttorney for the 

### 6th JudicialDistrict, composed of Fannin, Lamar and Red River Counties. At the time of his election and qualification,end at the time the suitwas commenced,Baldwin resided in Lamar County. After Baldwin took the office of District Attorney of the 

### 6th JudicialDistrict, the Legislaturepassed an Act creating the 102nd JudicialDistrict, composed of Red River and Bowie County. Red River Countywas taken out of the 

### 6th District, end'the 

### 6thDistrict was continued to be thereafter composed only of the Counties of Lamar and Fennin. The Legislature furtherprovided that the District Attorney of the 

### 6th JudicialDistrict shouldprosecute all criminal cases in the 102nd JudicialDistrict Court while sitting in Red River until the expiration of his present term of office. The Court, citing Section 

### 7 of Article V of the Constitution of Texas, held that the Legislaturehad a perfect right to change the 

### 6th JudicialDistrict by takingRed River County therefrom. The Court further observed that for reasons satisfactory to themselves, the people of our Statehave decreed that a DistrictAttorney must residewithin his district; and the Courtheld:

- 2393 -. .

Hon. Hoilis Garmon,page 4 (M-500)

"Sincf3 the ConstitutLya,art. 16, B 

### 14, requires a district attorney to reside fin his district, and sinceRed River county is no longer in the Sixth district, the Legislature was without power to autho.rize

the district attorney of the Sixth distr,ict

to exercise %he Duties of his office in Red River **cmaney. ”**  We oerceive nothing inyour situationwhich extricates it f:om che teeth ok, p the iloldingin Chambers v. Baldwin, supra, and 'thelegalprinciples announced in that decision make mandatL)ryour conclusion that the vacancynow exists in the office :>f

DistrictAttorney of the 8th Judicial District of Texas.
As to the office of DistrictAttorney of the newly created 196th JudicialDistrict, It is the opinion of this office that you are not the DistrictAttorney of such Distr:.ct,

ei%er de jure or &Aef%cto. You were not elected to the office of District Attorney of the 196thDistrict, and you have not been appointedtcthat post. Furthermore, as far as we :know, no one has been appointed to that particular office. Sinceno onehas ever held the office, it is impossible for you or anyone else to be a successor. A successor is defined as one that succeeds or follows, one who takes the place that another has left, one who has been appointed or elected toho7-?an nf,P!.ce after the term of the present encumber.t. See Thum son J.North Texas National Bank, JI 2';S.W.2d 

### 735 (Tex??%%&p. 1931). Under these circums':ar:ces

the on1.vofff'icer

whc can nerform the orosecuting attocvley's

functions .in

Hunt County is the County Attorney el'

Hunt Coun';y,

who may represent the State in all cases in the district and inferior courtsuntil such time as the office of DistrQt Attorney for the 196th Judicial District is properly filled. ArticleV, Section 21 of the ConstitufLon of Texas; Chambers v. Baldwin, supra. ColJAxral to,your opinion request this officehas also received an inquiry from the Honorable Robert S. Calvert, Comptroller of Public Accounts of the,State of Texas, asking our opinion as to whether he can legal1 disburse to you the salary of the DistrictAttorney of the 5th JudicialDistrict of Texas after September 19, l.96g5 the effectivedate of Senate Bill 22.

- 2394-. .

Hon. Hollis Garmon,page 

### 5 (l+500)

The facts contained inyour opinion request reflect that you were a resident of Hunt County on September 19, 

### 1969,and have continued to reside in Hunt County,without any intention to establishyour residence anywhere else. It has also come to our attention that on October 2, 

### 1969, you qualified as District Judge of the new 

### 196thDistrict in Hunt County, and in order to do so you were required to be a permanent resident of said County. Hence we have before us a state of facts under which in the language of Lamb v. State, supra, "the Constitutionalmandate imperatively declares the office vacant." We therefore conclude that the Comptroller is not legally authorized to disburse to you the salary of District Attorney of the 

### 8th Judicial District after September 19, 

### 1969.

SUMMARY Under Senate Bill 22, Acts 

### 1969,6lst Legislature, Second Called Session, effective September 19, 1969, Hunt Countywas removed from the 

### 8th JudicialDistrict of Texas and was made the territory of the newly created 196th JudicialDistrict of Texas; therefore, under the provisions of Section 14 of Article XVI of the Constitution of Texas there exists a vacancy in the office of District Attorney of the 8th JudicialDistrict of Texas under circumstanceswhere the duly electedDistrict Attorney of said 

### 8th JudicialDistrict resided in Hunt County on the effective date of Senate Bill 22, has resided in Hunt County since that time, and continues to so reside. Until such time as a person is appointed and qualified to the office of District Attorney of the newly created 

### 196thJudicialDistrict of Texas, no one has authority or color of authority to act in such capacity, and the duties of prosecuting attorney for Hunt Countymust be fulfilledby the CountyAttorney of that County until such time as the office of District Attorney is filled by appointment. Under the facts submitted, the HonorableHollis Garmon was a non-resident of the 

### 8th JudicialDistrict of Texas on and after September 19, 

### 1969;therefore, the office of said



### -2395-L.,

.

Hon. Hollis Garmon,page 

### 6 (M-500)

DistrictAttorney beeaTe vacant as of September 19, 1%9, and the Comptroller is not authorized to disburse to said HolLis Garmon the salary of District Attorney of the 8th JudicialDistrict after September 19, 

### 1969.

General of Texas AW:dc Prepared by Alfred Walker Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman W, E. Allen R. L. Lattimore Louis G. Neumann T. Ray McGregor MElADEF. GRIFFIN Staff Legal Assistant
HAWTHORNE PHILLIPS ExecutiveAssistant
NOLA WHITE First Assistant

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