. . 

EA NEY GENERAL 

QFTEXAS 

AUSTIN. ‘l%XAS 78711 

CRA,,‘F‘,RD ‘X MARTIN 

AlTORNEX OENERAL 

October 22, 1969 

Honorable Hollis Garmon 

District Attorney 

8th Judicial District 

Post Office Box 111 

Greenville, Texas 75401 

Dear Mr. Garmon: 

Opinion No. M- 500 

Re: Status of Hunt County 

District Attorney under 

Senate Bill No. 22, Acts 

1969, 61st Leg., 2nd C.S. 

Your recent letter requests the opinion of this office 

concerning your status as District Attorney of the 8th 

Judicial District 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 Statutes provides that the District 

Attorney shall be a resident of the District. 

I do not reside in the existing 8th District 

Attorney's jurisdiction. 

"The Texas Constitution provides that en 

officer continues to serve until his successor 

.has been elected, appointed, or,qualified; 

therefore, I presume that my status as District 

Attorney of the 8th and 196th Districts continues 

simultaneously until appointments are made." 

Prior to the enactment of Senate Bill No. 22, the 8th 

Judicial District 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 elected District Attorney for the 8th 

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

Judicial District at the last general election, and have 

been serving in that capacity. 

Senate Bill 22 creates the 196th Judicial District 

which is composed of Hunt County only, and Hunt County is 

removed from the 8th and 62~ Judicial Districts. Senate 

Bill 22 also creates the office of District Attorney for 

the 196th Judicial District. 

As we understand the undisputed facts, you resided 

in Hunt County on the effective,date of 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 District Attorney of the 

8th Judicial District of Texas. 

Article XVI, Section 14 of the Constitution of 

provides: 

Texas 

"All civil officers shall reside within 

the State; and all district or county officers 

within their districts or counties, and shall 

keep their offices at such places as may be 

required by law; and failure to comply with 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 constitution to alter the territory in 

which he exercises his functions, though as a result his 

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), it was held that an order redistricting a county was 

not invalidated by the fact that it resulted in putting 

commissioners, who formerly lived in other precincts and who 

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. . 

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

had been nominated for re-election, in the same precinct, 

thus making it impossible for one of them to be re-elected. 

Article XVI, Section 14 of the Texas Constitution, 

requiring all district :>r county officers to reside within 

their district or county and orovidina for vacation of 

office upon 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 i' 14). 

In Lamb v. S",ate, 267 S.W.2d 285 (Tex.Civ.App. 1954, 

no writ),9 the following comment was made: 

"4rticle 16, B 14, on the other hand 

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 imperatively declares 

the office vacant." 

In Chambers v. Baldwin, 282 S.W. 793 (Tex.gmmnmtEp. 

Section D. 192b). the basic facts were these: 

was elected fris&ict Attorney for the 6th Judicial District, 

composed of Fannin, Lamar and Red River Counties. At the 

time of his election and qualification, end at the time 

the suit was commenced, Baldwin resided in Lamar County. 

After Baldwin took the office of District Attorney of the 

6th Judicial District, the Legislature passed an Act creating 

the 102nd Judicial District, composed of Red River and 

Bowie County. Red River County was taken out of the 6th 

District, end'the 6th District was continued to be thereafter composed only of the Counties of Lamar and Fennin. 

The Legislature further provided that the District Attorney 

of the 6th Judicial District should prosecute all criminal 

cases in the 102nd Judicial District 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 Legislature had a perfect 

right to change the 6th Judicial District by taking Red River 

County therefrom. The Court further observed that for reasons 

satisfactory to themselves, the people of our State have decreed 

that a District Attorney must reside within his district; and 

the Court held: 

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. . 

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

"Sincf3 the ConstitutLya, art. 16, B 14, requires 

a district attorney to reside fin his district, 

and since Red 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 in your situation which extricates 

it f:om che teeth ok, p the ilolding in Chambers v. Baldwin, 

supra, and 'the legal principles announced in that decision 

make mandatL)ry our conclusion that the vacancy now exists 

in the office :>f District Attorney of the 8th Judicial 

District of Texas. 

As to the office of District Attorney of the newly 

created 196th Judicial District, It is the opinion of this 

office that you are not the District Attorney of such 

Distr:.ct, ei%er de jure or &Ae f%cto. You were not elected 

to the office of District Attorney of the 196th District, 

and you have not been appointed tcthat post. Furthermore, 

as far as we :know, no one has been appointed to that particular office. Since no one has 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 to ho7-? 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.v offf'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 courts until such time 

as the office of DistrQt Attorney for the 196th Judicial 

District is properly filled. Article V, Section 21 of the 

ConstitufLon of Texas; Chambers v. Baldwin, supra. 

ColJAxral to,your opinion request this office has 

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 District Attorney of the 5 th Judicial District 

of Texas after September 19, l.96g5 the effective date of 

Senate Bill 22. 

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. . 

Hon. Hollis Garmon, page 5 (l+500) 

The facts contained in your 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 establish your residence anywhere else. 

It has also come to our attention that on October 2, 1969, 

you qualified as District Judge of the new 196th District 

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 Constitutional mandate 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 County was removed 

from the 8th Judicial District of Texas and 

was made the territory of the newly created 

196th Judicial District 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 Judicial District of Texas under circumstances where the duly elected District 

Attorney of said 8th Judicial District 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 196th Judicial District of Texas, no one 

has authority or color of authority to act in 

such capacity, and the duties of prosecuting 

attorney for Hunt County must be fulfilled by 

the County Attorney of that County until such 

time as the office of District Attorney is filled 

by appointment. Under the facts submitted, the 

Honorable Hollis Garmon was a non-resident of the 

8th Judicial District of Texas on and after 

September 19, 1969; therefore, the office of said 

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L., . 

Hon. Hollis Garmon, page 6 (M-500) 

District Attorney 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 Judicial District 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 

MElADE F. GRIFFIN 

Staff Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant 

NOLA WHITE 

First Assistant 

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