Texas Attorney General Opinion: O-3080 Page: 3 of 6
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323
1knorable L. B. Fowler, Page 3
court for incompetencoy, official misconduot or be-
coming intoxicated by drinking intoxicating liquor,
se a beverage., whether on duty or not; provided
such officer shall not be removed for becoming
intoxicated when it appears upon the trial of suoh
officer that touch intoxication was produced by
drinking intoxicating liquors upon the direction
and prescription of a duly licensed practicing
physician of this State.' Article 6970, Vernon's
Annotated Civil Statutes.
As we understand your request three questions are
resentedl (1) Does a vaaoncy exist in the office of
unstablee under the faots related? (2) Yeay the commissioners'
court declare the office vacant? (3) May the oomissioners'
court appoint a ner Consteblo?
In Ehltnger v. Rankin, 9 C. A. 4 4, 29 S. V. 240,
the court held that under Seotion 24 of Article 5 of the Con-
atitution of Texas the oommiesioners' court has no Jurisdio-
tion to determine whether a county officer, by changing his
residence, has vacated lisa office; that this Juriadiction
under the Conetitution lies with the district court.
- The court further held that while a Judgment of the
District court declaring a. veatncy is not neceesarily a con-
dLiton precedent to the exercise of the appointive rover by
the commslesionoers osurt underr Artiole 5, Section 213 of the
Constitution, Article 255, V.A..S., 1925) if a v~ocno-y in
kitt ex ts, the determination of the pnestion o vacant.
can be made only by a district court.
Hamilton v. King (T.C.A. 1918) 208 a'W. 853, is an
almost identioe.l case. In 1916 appe.laPt Hamilton s .-
duly elected to the office of County Attorney, had entered
uon the duties of his office and had appointed a dqputy.
In 1918 he Was involuntarily induoted into the Army of the
nlited States of A~zmerican; and in September of the same year
the conmielionsra' court declared the office of county
Attorney to be vacant and appont d appellee King county
attorney notv&thntandlng that sppeflant Ea nilton' deputy
or asi tant attorney had at nll tinmesn dischargsed (during
ppellant's absenco) the duties of the office.In reversing and roemsndln the oase fir further
;rooeedlngs the ourt aid:
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-3080, text, April 3, 1941; (https://texashistory.unt.edu/ark:/67531/metapth260306/m1/3/: accessed July 10, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.