No. V-0026.

• Case Date: January 15, 1947
• Court: Texas

Texas Attorney General Opinions 1947. No. V-0026. 1January 15, 1947Hon. E. L. Winson, Jr.County AuditorPolk CountyLivingston, TexasOpinion No. V-26Re: Right of County Commissioner to hold office while working in the State of Mississippi.Dear Sir:Your letter requesting an opinion from this Department on the above subject matter reads as follows:

"I would like to have an opinion from you on the following questions:

"Commissioner of Precinct No. 1, who was elected at the last General Election, secured a job with a Construction Company in December of 1946 in the State of Mississippi but his family still lives in Polk County, Texas, and he did not qualify for the office of Commissioner of Precinct No. 1, and take the oath of office until January 13, 1947. He left immediately for Mississippi to resume his work as foreman for the Construction Company of the State of Mississippi and is drawing a salary of One Thousand Dollars per month. He has not done anything to the Maintenance of his roads or hired a crew to do the work.

"Can he serve as Commissioner of Precinct No. 1, of Polk County, Texas and stay in the State of Mississippi and work for a Construction Company?

"Can I Commissioner of Polk County, Texas, and him continue as foreman of the Construction Company, and him meet with the Court once every thirty or sixty days?

"Do I have authority to approve payment of payroll or material of his precinct when he has not been present to approve them or to sign purchase orders?

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"Can the Commissioners Court approve payrolls and payment of purchase orders and transact business with the Commissioner of Precinct No. 1 absent from the state?

"Can he appoint a foreman to act as his supervisor of road maintenance and construction for him and the commissioner continue his work in Mississippi?"

The primary question presented by your inquiry is whether or not, under the facts submitted, the person in question has vacated or abandoned his office of County Commissioner. In Words and Phrases, Vol. 37, pages 216--270, we find the following definitions:

"Residense is indeed made up of fact and intention; that is, of abode with intention of remaining. But it is not broken by going to seek another abode, but continues until the fact and intention unite in another abode elsewhere." 37 W. & P. 256.

You state in your letter that his family "still lives in Polk County." Therefore, it cannot be stated as a matter of law that the person is question removed his residence from Polk County and thereby vacated his office.

"It is a general rule that failure to qualify for an office within the time prescribed by law does not of itself create a vacancy." Buchanan vs. Graham, 81 S.W. 1237, 1239. See also 34 Texas Jurisprudence 376.

We quote the following from 34 Texas Jurisprudence 375:

"The Constitution declares that a failure to comply with the requirement that 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, shall vacate the office so held. This provision is self-executing

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and needs no legislative action to put it into force and effect. Under it a county officer who removes from the county and establishes a residence elsewhere thereby vacates his office. But absence from the State or inability or unwillingness to perform the duties of the office, or the mere absence of a county officer from the county while involuntarily in the military service of the United States, without any showing as to the probable duration of his absence, does not create a vacancy."

See also: Crawford vs. Saunders, 29 S. W. 102; Hamilton vs. King, 206 S. W. 953. From a study of the above cited authorities, it seems to be settled in Texas that a vacancy is not created by an officer's absence from the State or his inability or unwillingness to perform the duties of his office. In order to constitute an abandonment, there must be an actual or imputed intent on the part of the officer to relinquish the office. Steingruber vs. City of San Antonio (Com. App.) 220 S. W. 77; Honey vs...