Untitled Texas Attorney General Opinion

Hon. Alex F. 60x District Attorney 36th Judicial District Seevllle, Texas Dear Sir: Opinion No. 04515 Re: (1) Is a commissioners court ‘emRotiered't0appoint as shrelff a non-resident of the county to serve out.the unexpired term of the duly elected sheriff who has resigned?, (2) If suoh appointment is made, can.the appointee legally hold the office of sheriff during the term of the appolntinent? (3) Would the fact that the api polntee Is a State Ranger who formerly maintained his reeldenae in the county, but who for the past 10 months has resided else- where 'with his family, make any difference with regard to the legality of the appointment? your request for an opinion on the above-stated questions has been received by this department. Article 2227, yernon's Civil Statutes, reads as follows: .~. "mo person shaL1 be eligible to any State;aounty, precinct ormunlolpal office in this State unless he shall be eligible to hold office under the Constitution of this State, and unless h8 shall have resided in this State for the period of twelve (12) months, and six (6) months In the county, precinct or munlclpalltg,~ in which he offers himself as a candidate, next preceding any general or speoial election, and shall have been an actual bona fide citizen of said oounty, prealnct or munloipality for more than six (6) months. No person Ineligible to hold office shall 8V8r have his name placed upon the ballot at any general or special elec- tion, or at any primary election where candidates are Hon. Alex F. Cox, Page 2, O-1515 selected under primary election laws of this State; and no such in8ligibl8 candidate shall ever be voted. upon, nor have votes counted for hlm,at any such general, special or primary election." Article 2928, Vernon's kvll Statutes, provides: %Ueither the Secretary of State, nor any county judge-of this State, nor any other authority authorized to Issue certificates, shall Issue any certificate of election or appointment to any person elected or appointed to any office Inthis State, who is not eligible to hold such office Under the Constitution of this State and Under the above ArtiCl8S; and,the name of no ineligible person, under the Constitution and laws of this State, shall be Certified by any party, oommlttee, or any authority authorized to have the names of candidates placed upon the primary ballots at any primary election In this State; and the name of no ineligible candidate under the Constitution and laws of this State shall be placed upon the ballot of any general or special election by any authority whose duty It Is to place names of candidates upon official ballots." Our courts have uniformly heid that a party who Is duly appointed or elected as an officer Is a de facto officer, although he may be In law dlsquallfldd from acting. See the cases of Germany vs. State, 3 S.W. (2d) 798; Broach vs. Garth, 50 S.W. 594; and Shlrber vs. Culberson et al, 31 S.W. (2d) 661, and authorities cited therein. In view of the foregoing aUthOriti8s, questions numbered 1 and 2, above quoted, are answered In the negative. Section 9 of Article 16 of the State Constitution reads as follows: "Absence on business of the State or of the United States, shall not forfeit a residence once obtained, so as to deprive anyone of the right of suffrage, or of being elected or appointed to any office under the exceptions contained in this COnStitUtlOn." m opinion No. O-1263, thFs department held that "a party cannot hold the office of deputy sheriff and Special ranger at the same time." We enclose a copy of this opinion for your convenience. In view of the above-mentioned~opinion, it is apparent that a party cannot hold the offlae of sheriff so long as he remains a Stat8 Ranger. Hon. Alex F. cox, Page 3, o-1515 In view of the foregoing authorities, you are r8Sp8CtfUlly advised that it Is the opinion of this depart- ment that If the appointee to the office of sheriff maintained his legal residence In the OOUnty where euoh appointment Is to be made during the past eighteen months he was absent from the county on business of the State as a State hng8r, and still maintains his legal residence In such county, he can bellegally appointed sheriff of such county. However, If such appointee did not maintain his legal residence In th8 county Wh8r8 such appointment is.to be made dUrlng the past eighteen months he has been absent from the county, he can- not be legally appointed sheriff of the county. Trusting that the foregoing fully answers your lnqulry, we remain Yours Very truly ATTORNEY GENERAL OF TnEXAS s/ hrdell Wllllams BY Ardell'~llllams &%vistant RPPROm OCTOBER 20, 1939 s/ Gerald C. Mann ATT$?lWY GENERAL‘ OF TEXAS &prOV8~~Opinion Committee By BWB, Chairman AW: @dog-