Untitled Texas Attorney General Opinion

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-