November25, 1968
Honorable Ned Granger Opinion No. h-309
County Attorney
Travis County Courthouse I@: Qualifications for the
Austin, Texas appointment to the po8i-
tion of deputy constable
under the applicable state
statutes and whether the
position is deeamd a
*public offiw in thim
state" within the meaning
of Article 1.05 of the
Dear Mr. Granger: Texas Election Code?
You have requested an opinion fran this office on
the following questions:
"1. Are there any statutory requirements
as to residence of a deputy constable, and if
there are, would you please cite them?
“2. Is the position of Deputy Conatable
a 'public office in this state' within the
meaning of V.A.T.S. Election Code Art. 1.051.,
*3. Must a man be a resident of a pre-
cinct in order to qualify to serve as a dep-
uty constable in that same precinct? If 80,
must he have reeided in the precinct for any
epecif ied length of time?
"4. uust a man be a resident of a county
in order to qualify to nerve aa a hputy sheriff
of that county? If no, must he have resided in
the county for any specified length of time?"
Article 6869, Vernon’s Civil Statutes, reads in
part as follows:
"Sheriffs shall have the power, by writing,
-1497-
.. . -. .
.
ilonorablebed Granger, page 2, (M-308)
to appoint one or more deputies for their re-
spective counties, to continue in office during
the pleasure of the sheriff, who shall have power
and authority to perform all the acts and duties
of their principals; and every person so ap-
pointed shall, before he enters upon the duties
of his office, take and subscribe to the offi-
cial oath, which shall be endorsed on his~ap-
pointment, together with the certificate of the
officer administering the same; and such ap-
pointment and oath shall be recorded in the
office of the County Clerk and deposited in
said office. . . .I (Lmphasis added.)
Article 6879a, Vernon's Civil Statutes, reads
part as follows:
*Section 1. The duly elected Constable
in each Justice Precinct having a city or town
of less than eight thousand (8,000) population
according to the preceding Federal Census rn>
appoint one (1) Deputy and no more; and each
Justice Precinct having a city or town of eight'
thousand (8,000) and less than forty thousand
(40,000) population according to the preceding
Federal Census may appoint two (2) Deputies and
no more; and in each Justice Precinct having a
town or city of forty thousand (40,000) popula-
tion or more according to the preceding Federal
Census may appoint five (51 Deputies and no
more, and each and every instance said Deputy
Constables shall qualify as required of Deputy .:.
Sheriffs. . a .I (Emphasis added.)
Article 1.05 of the Texas Election Code reads
as follows:
Wo person shall be eligible to be a
candidate for, or to be elected or appointed
to, any public office in this state unless
he is a citizen of the United States eligible
to hold such office under the Constitution i
and laws of this state and is under none of
the disabilities for voting which are stated
in Article VI, Section 1 of the Constitution
of Texas on the date of his appointment or of
- 1498 -
_.. .
Honorable Ned Granger, page 3, (M-308)
the election at which he is elected, and unless
he vi11 have resided in this state for a period
Of tvelve months next preceding the applicable
date specified below, and for any public office
which is less than statewide, shall have resided
for 81x months next preceding such date in the
district, county, precinct, municipality or
other political subdivision for which the office
if to be filledr
"(1) For a candidate whose name is printed on
the bellot for s general (first) primary election,
the applicab1e.dat.eis the last day on which any
candidate for the office involved could file his
application to have his name printed on the ballot
for that primary election.
"(2) For an indepsndentor nonpartisan candidate
in a general or special election, the applicable
date is the last day on which the candidate's
application for a place on the ballot could be
delivered to the appropriate officer for receiving
the application.
"(3) For a write-in candidate, the applicable
date is the day of the election at which the
candidate's name is written in.
'(4) For a party naninee who is nominated by
any msthod other than by primary election, the
applicable date is the day on which the nominr
tion is made.
"(5) For an appointee to an offiw, the appli-
cable date 16 the day on vhich the appointment
is made.
"The foregoing requirements shall not apply
to any office for which the Constitution or stat-
utes of the United States or of this state pre-
scribe qualificstionsin conflict herewith, and
in case of conflict the provisions of such other
laws shall control.
"bxcept as provided in Section 104 of this
code, no ineligible candidate shall ever have
his name placed upon the ballot at any priauary,
general or special election. i40ineligible
- 1499 -
.. .
Honorable Ned Granger, page 4, (~-308)
candidate shall ever be voted upon nor have
votes counted for him at any such primary, gen-
eral or special election for the purpose
of nominating or electing him, but votes cast
for an ineligible candidate shall be taken into
account in determining whether any other candi-
date received the necessary vote for nomination
or election. iloperson who advocates the over-
throw by force or violence or change by uncon-
stitutionalmeans of the present constitutional
form of government of the United States or of
this state, shall be eligible to have his name
printed on any official ballot in any general,
special or primary election in this state.*
It is clearly evident that Article 1.05 ofcthe
Texas Election Code shows on its face that it relates to the
eligibility requirementsof a candidate for, or one to be
elected or appointed to any elective public office in this
state. It does not apply to the eligibility requirements
to serve as a deputy sheriff or constable.
We have searched the statutes and can find no
requirements for residence for deputies. We therefore
Concur with you that there are no statutory requirements
as to residence for deputies.
SUMMARY
--e-m--
There are no statutory requirementsas
to residence for deputies. Article 1.05 of
the Texas Election Code applies only to
elective public offices and the eligibility
of persons to beaidate for or one to be
elected or appointed thereto.
/7
Honorable Ned Granger, page 5, (H-308)
Prepared by William J. Craig
Assistant Attorney General
APPROVED:
OPINIOiJCONMITTEE
Kerns Taylor, Chairman
Malcolm Quick
Bob Lattimore
Louis Neumann
Fisher A. Tyler
mmHIoRNL: PHILLIPS
Staff Legal Assistant
, 4
-1501-