Untitled Texas Attorney General Opinion ( 1961 )

THEA~TORNEYGENERAL
OF -WAS
AUSTIN aa.T~xas
WVILL WILSON
A-RNEYGENERAL
May 22, 1961
Honorable W. G. Walley, Jr.
Acting Criminal District Attorney
Jefferson County
Beaumont, Texas
Opinion NO. ``-1064
Re: Emoluments of the office of
Criminal District Attorney
while the elected Criminal
District Attorney Is suspend-
ed from office pending removal
proceedings, and related ques-
Dear Mr. Walley: tlons.
You have requested an opinion on the following ques-
tlons:
"1. Whether or not, during the time a
Criminal District Attorney is suspended from
office, and prior to his removal from that
office, he is entitled to the financial emolu-
ments of that office until such time as he may
be removed?
"2. Should the answer to the first ques-
tion be In the affirmative, then should pay-
ments of such emoluments be suspended and paid
over to him at the actual tlme'of his removal,
If he should be eventually removed or should he
be paid as was the custom In the past?
w3. In the event of a temporary suspension
of a constable from office, and prior to his re-
moval from that office, Is he entitled to the
financial emoluments of that office until such
time as he may be removed?
=4. Should the answer to the third ques-
tion be in the affirmative, then should payments
of such emoluments be suspended and paid over to
Honorable W. G. Walley, Jr., page 2 (``-1064)
him at the actual time of his removal, If he
should be eventually removed or should he be
paid as was the custom in the past.
“5. Does the Commissioners Court have
the authority to pay the emoluments of office
to the person discharging the duties of the
Criminal District Attorneys office during the
time that such elected Criminal District At-
torney is suspended?
“6. Does the Commissioners Court have the
authority to pay the emoluments of office to
the person discharging the duty of a Constable
during the time that such elected Constable Is
suspended?"
When a person undertakes to discharge the duties of any
public office In Texas he exercises those duties in one of
three possible classifications, to-wit: (a) officer de jure,
(b) officer de facto, or, (c) a mere intruder in the office.
A de jure officer is entitled to the emoluments of that
office so long as the individual is a de jure officer. Board
v. City of Decatur, 64 Tex. 7 (1885); City of Houston v.
Estes, 79 S W 846 (Clv;App. 1904 error ref ) 34 Tex.Jur.
-13, Public Officers, Sec. 106. Therefocef we believe
that the answer to your questions is dependent on whether an
Individual suspended from office by a court of competent juris-
diction, pending removal proceedings, remains a de jure officer
even though he is no longer performing the duties of that of-
fice. Your request, therefore, Is answered by the principles
of law announced in Chownlng v. Boger, 2 Wlll.Tex.Clv. Cases
650 (1885). In that case the regular elected and qualified
sheriff had been temporarily suspended from office by the judge
of the district court and one A. T. Boger had been appointed
to perform the duties of the office of sheriff pending removal
proceedings. Subsequent to the suspension and prior to the
hearing on the removal proceedings, the duly elected sheriff
resigned from office and the commissioners' court, believing
that such resignation created a vacancy In the office, ap-
pointed one H. Chownlng sheriff. The court held that Boger,
by virtue of the appolntment, was sheriff de facto and the
elected sheriff, prior to resignation, was the de jure offl-
cer and entitled to the emoluments of the office prior to
resignation and that Chownlng, after his appointment was the
de jure sheriff and was then entltled to such emoluments.
-.
Honorable W. G. Walley, Jr., page 3 (w-1064)
You are therefore advised In answer to Questions Nos.
1, 3 and 6 that duly elected officers suspended from office
by a court of competent jurisdiction pending removal pro-
ceedings are entitled to their statutory compensation during
the time of suspension prior to hearlng on removal proceedings.
Since It is to the Interest of the public that the duties
of an office be performed, de facto officers are entitled to
compensation of services rendered. McAllen v. Rhodes, 65 Tex.
348 (1886). It Is our opinion that a de facto officer 1s en-
titled to receive the same compensation as a de jure officer
In the same position. Attorney General's Opinion 0-31.58(1943)
and authorities cited therein.
Summarizing the foregoing, and answering your questions
categorically, you are advised:
(1) During the time a Criminal District Attorney is sus-
pended from office and prior to his removal from that office,
he Is entitled to the financial emoluments of that office until
such time as he may be removed.
(2) Payments of such emoluments should not be suspended
but should be paid to him In regular Installments.
(3) A constable temporarily suspended from office Is en-
titled to the financial emoluments of that office until such
time as he may be removed.
(4) Payments of such emoluments should not be suspended
but should be paid to him In regular installments.
(5) The person discharging the duties of the Criminal Dis-
trlct Attorney's office during the time that the elected Criminal
District Attorney Is suspended 1s entitled to receive the same
compensation as the elected Criminal District Attorney during
the period of time he discharges the duties of the office of
Criminal District Attorney.
(6) The person discharging the duties of Constable during
the time the elected Constable is suspended Is entitled to re-
ceive the same compensation as the elected Constable during the
time he discharges the duties of the office of Constable.
SUMMARY
Individuals duly suspended frorroffice pend-
ing removal proceedings will remain de jure
Honorable W. G. Walley, Jr., page 4 (~-lo641
officers until removal and are entitled
to their statutory compensation during such
time.
Individuals duly appointed to discharge
the duties of the office during the suspen-
sion period are entitled to the same com-
pensation as the elected officer to the
position during the time they actually dls-
charge the duties of the office.
Yours very truly,
WILL WILSON
Attorney General of Texas
JR:ms Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene Fletcher
Elmer McVey
Gordon C. Cass
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbitt