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
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