Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
0F TEXAS
December 2, 1988
Honorable Bob Bullock Opinion No. JR-989
Comptroller of Public Accounts
L.B.J. State Office Building Re: Whether the Comptroller
Austin, Texas 78774 may pay the salary of a
visiting judge who has been
improperly appointed
(RQ-1494)
Dear Mr. Bullock:
You ask whether the Comptroller of Public Accounts may
lawfully pay the salary of a visiting judge who was appoint-
ed to preside over a case without all of the statutory
formalities for that appointment having been fulfilled.
Your question appears to have been prompted by a recent
- opinion of the Supreme Court of Texas in State v. Preslar,
751 S.W.2d 477 (Tex. 1988). Insofar as is pertinent to your
inquiry, Preslar held that the~chief Justice of the Supreme
Court of Texas lacks the authority to assign a retired judge
to sit as a visiting judge within the administrative region
of his residence absent the special circumstances enumerated
in section 74.049 of the Government Code.1
1. Section 74.049 provides:
The chief justice may make assignments
within an administrative resion and perform
the other duties of a presiding judge in the
following situations:
(1) on the death or resignation of the
presiding judge and until a successor
presiding judge is appointed:
(2) on notification to the chief justice
by the presiding judge or other appropriate
source that an absence, disabling illness,
or other incapacity of the presiding judge
-. (Footnote Continued)
p. 5056
Honorable Bob Bullock - Page 2 (JM-989)
In Preslar, the question of payment of the visiting
judge for services rendered, if any, was not an issue. The
question before the court arose in an original mandamus pro-
ceeding challenging the authority of the Chief Justice of
the Supreme Court to assign a retired judge to sit as a
visiting judge within the administrative region where he
resides.
A de facto officer may recover compensation for
services rendered. Harris Countv v. Hunt, 388 S.W.2d 459,
465 (Tex. Civ. APP. - Houston 1965, no writ); 60 Tex.
Jur. 3d Public Officers and Smnlovees § 257. On the other
hand, a de facto officer may not recover compensation for
services not rendered. Glenn v. Town of Trenton, 256 S.W.
631 (Tex. Civ. App. - Texarkana, 1923, no writ).
While you do not state what statutory formalities were
omitted in the appointment of the visiting judge, we believe
the guidelines set forth in the following authorities will
be of assistance to you in determining whether the visiting
judge has served in a de facto posture and is entitled to be
paid for services rendered.
The policy underlying the doctrine of de facto officers
was stated in French v. State, 572 S.W.Zd 934, 935 (Tex.
Crim. App. 1978, no pet.).
The doctrine of' officers de facto was
created as a matter of public policy to
protect both an officer appointed by some
power having \color' of authority to appoint
him and the public relying on the validity of
that appointment.
In Attorney General Opinion JM-874 (1988) the matter of
the validity of the actions taken by a commissioner during
(Footnote Continued)
prevents the judge from performing his
official duties for a period of time and
until the presiding judge is again able to
perform the duties; and
(3) in a particular matter in which the
presiding judge disqualifies himself from
performing the duties of presiding judge in
that matter. (Emphasis added.)
p. 5057
I Honorable Bob Bullock - Page 3 (JM-989)
the tenure of an appointee member subsequently found
ineligible was addressed, as follows:
A de facto officer is one who, by his
acts, has the appearance of holding the
office he has assumed, but who in fact does
not validly hold the office. Germanv v.
m, 222 s.W.Zd 172, 176 (Tex. Civ. App. -
Fort Worth 1949, writ ref'd n.r.e.): Citv of
Christine v. Johnson, 255 S.W. 629 (Tex. CiV.
APP. - San Antonio 1923, no writ). The
designation of 'de facto officer' may attach
to one who holds office under color of an
appointment that is subsequently invalidated
on the grounds that the appointee was
ineligible. Norton v. Shelbv Countv 118
U.S. 425, 446 (1886); Sx carte Trace;, 93
S.W. 538, 542 (Tex. Crim. App. 1905). Acts
performed by a de facto officer under color
of office are considered valid. Worton v.
Shelbv County, 118 U.S. at 441-42: Germanv v.
w, 222 S.W.2d at 176. &9 generallv 39
Tex. Jur. 2d Municinal Coroorations 5 144 and
cases cited therein: 67 C.J.S. pfficers 55
- 269-70.
Here, as in Vick v. Citv of Waco, [614
S.W.2d 861, Tex. Civ. App. - Waco 1981, writ
ref'd n.r.e.1 the challenged officers were
acting under color of authority. Thus, each
was a de facto officer, and 'as such his acts
are as binding as though he was an officer de
jure.'2 Shriber v. Culberson, 31 S.W.2d 659,
661 (Tex. Civ. App. - Waco 1930, no writ).
Attorney General Opinion JM-874 (1988) at 2, 3.
"Color of authority" as applied to de facto officers,
"is authority derived from an election or appointment,
De jure is defined in Black's Law Dictionary 382
(5th :d. 1979) as:
Descriptive of a condition in which there
has been total compliance with all
requirements of law. Of right; legitimate:
lawful: by right and just title. In this
sense it is the contrary of de facto.
-P. 5058
Honorable Bob Bullock - Page 4 (JM-989)
P.2d 901 (Wash. 1942): see cases cited at 7A Words and
Phrases 300.
Before an officer can be regarded as a de facto
officer, there must be an office that he or she could hold
de jure. Citv of Dallas v. McDonald, 103 S.W.2d 725 (Tex.
1937). Section 75.002 of the Government Code authorizes the
assignment of a judge who has retired pursuant to section
75.001 of the Government Code to sit on any court of the
state of the same or lesser dignity as that on which the
person sat before retirement. Section 74.057 of the Govern-
ment Code provides that the chief justice may assign judges
(active or retired) of one or more administrative regions
for service in other administrative regions. The presiding
judge of an administrative region is authorized to assign
judges (active or retired) to hold special or regular terms
of court in any county within the administrative district
pursuant to the provisions of section 74.056 of the Govern-
ment Code. A judge assigned under any of the foregoing
provisions "has all the powers of the judge of the~court to
which he is assigned." Gov't Code 5 74.059. Clearly, a
judge serving in another court pursuant to assignment
occupies a position or office that he or she could hold de
-_,
jure. While the assignment of a judge to sit in a court may
not in the strictest sense of the term constitute an
appointment to an office, no reason is perceived why the
rationale underlying the law relative to de facto officers
is not applicable.
While we cannot envision every scenario which might
arise where there is a departure from statutory assignment
requirements, we believe that any judge (active, or retired
pursuant to section 75.001 of the Government Code) assigned
under the color of authority to a court existing under the
laws of this state is entitled to be compensated for
services rendered while sitting on that court.
In Preslar the court further held that the 1987
amendment to section 74.053 of the Government Code did not
repeal subsection (b) which provides "[iIf a party to a
civil case files a timely objection to the assignment,
the judge is disqualified to hear the case." While your
scenario does not include this factor it is noted that in
the event of objection by either party the holding in
Preslar would dictate that the judge is disqualified and
would not be entitled to further compensation for services
rendered following such disqualification.
p. 5059
Honorable Bob Bullock - Page 5 (JM-989)
SUMMARY
The Comptroller of Public Accounts may
lawfully pay the salary of a visiting judge
(active, or retired pursuant to section
75.001 of the Government Code) assigned under
the color of authority to a court existing
under the laws of this state for services
rendered while sitting on the court to which
he or she has served pursuant to such assign-
ment. In the event either party to a civil
case files an objection to the assignment,
the judge is disqualified under section
74.053(b) of the Government Code and is not
entitled to compensation for any services
that may be rendered following disgualifica-
tion.
-Jzy$f&
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 5060