Untitled Texas Attorney General Opinion ( 1942 )


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    OFFlCEOFTHEAI-fORNEY         GENERALOFkCAS
    AUSTIN
    rranorabluGeoI Ii. Sheppard
    comptroller of Pltb1l.aAccounts
    Austin, Texas
    Dear &r. Sheppardi       Oplnian No. o-48
    H8l  Authorit
    Your letter of Ootob               requesting's legal
    o@.ion of this department u                   aptioned subjeat
    is as follous~
    Y. Crcuuar,Spe
    for the OStb J
    dered to the
    ers of the.Bar of
    1. 9. Lirsmlft$t
    ham3
    0 legal.$ty   of the
    Y. Cramer as Speoial Judge
    1 District, and have f&led
    nt l statelaentat faots to-
    int of law he has raised in
    e authority of tho @embera of
    o elect a Special Judge to a
    &am submitting the entire file here-
    ;:i?'%i will thank you to advise thle depart-
    ment Whether ~0 are authorized to pay the cl8im
    of William Ai. Cramer as pswsented.*
    Seotion I2 of Article XVI of the Constitutloo Is
    as follows:
    '.
    Honorable Goo. D. Sheppard - page 2
    "Do member of Congress, nor person hold-
    ing or exercising any offioe of profit or
    trust, under the Unitsd States, or elther~of
    them, or under any foreign paver, shall be
    eligible as a member of the Legislature, or
    hold or exercise any Office of profit or
    trust under this Stet8.'
    In State Y. DeGress, 53 70x. !Y&, it was held
    that an officer of tho United statas on tho retired list
    oonstitutes a part of the Army of the United States, and
    that as such offioer, he was forbiddan to hold at the same
    time the office of hayor of the City of Austin. State Y.
    DeGress, 
    53 Tex. 357
    , In -SXJWt.8 Dailey, 248 S. V. 91,
    the court of Criminal Appeals emphasized this by exoopting
    from the rule the caee of a.member of tho National Ouard
    who had not been called in+ actunl service of tho United
    states,  the office being thPt of District Judge.
    IT112
    rule is further aacentuated in the case of
    Lowe Y. Stata, *.-heroin
    the Courtof Criminal Aypsals uf-
    ferontiated the status of a &tional Guardsman and Ms-
    triot Judge. i'haDistrict Judge being absent, the Bar
    cleated a Special Judge, and the r0gular &zdgz thereafter
    rent Into the active service, and the court hold that the
    Special J&g0 had &Wer t6 continue the term already be-
    gun* Lou0 'I.state, 201 s.'V. 956.
    It is uell settled that xhere one aocepts an in-
    compatible office with tho one he holds he thereby auto-
    matioally as matter of law raoatos the first office. State
    Y. DeGress, suprat Love Y. 'State, supra~ Diencourt Y. Parker,
    27 Tax. 655; atate Y. tiritierhoff,60 Tex, 45, 17 5. w. 1093
    Stat8 Y. Valentine, 195 5. ,q* 1000; Druitt 1. Glen Dose In-
    dopondent Sohool Dist. tie, 1, 34 S. x. (2) 1004; 3,OOA.L.R.
    11w; deal Y. Hnilroad Cometssion of' %'eu;rs,107 9. W. (2)
    439.
    Under the faots f5hGr;n
    by the instruments aooompany-
    ing your letter, Judge Diehard J. Dixon, the regularly eleot-
    ed District Judge for the OSth Judicial Mstriet, as a rolun-
    toer was temporarily nppGinted and coox&ssioned as a LIaJorin
    the Arn.qcf tho United Statos, suc.hcommlasion to continue in
    force durpng the pleasure of the Frasidcnt of tbe United
    States for the tiuo bOing, and for the duration of the pree-
    kionorablo(ioo.n. Shiqqmmi - Pws    3
    ent esiegvncy and e&x months tharooftar, ualoee 6oom1
    teminutod, and ha* aoeeptod  such nppolIltAwnt,aal ho8
    aotuall~ boon engaged in the oerviae ns such Aisjor ug
    until the present time. mr. Cramr was elootsd by the
    Lar of Dallas County, after such apyointmant a& quali-
    ficrrtion OS Judge Dixon.
    Js shorn by tha rwi.ous instruEi?ntsaeoolripaq-
    ing your +.etter, Judga Dixon dims not oou@ritla.h any of
    tha sraoptiona oontaioed in Um Constitutf.aa, an& there-
    fore not ritbin t&s 08Ls.SOf Carpontsr T. Smppard‘ 146
    s. u. (2) 652. Judga Dixon has, thorefor3, ?racated*&s
    offloe of D&strict Judgs.
    Yauoanclostn tlro0PMcs of Julga 0P the i?&etibt
    Courts are rsquirsd to bs Cillad by the Covarnor. soo. 28,
    Art.   v,   of the Constitutf6n.
    .SnU$tion 31).O-1784 th%isEJ~artDer&,rUl:M,
    n~hat no rmwision has bs3n made i'i:? Um elostion of a
    Special &dg3, or tlm ussl@mrtrltof a Ju&,neBOBI another
    district tithin th3 sdminLetrativ* dhtrlct,  f ollcruing
    tho death Of tha r0~3lar judge, and prior to the Pilling
    oi 3~s rzomcy   oocasimed by Lb  death of the District
    Jwlga bJ ap9ointaent made by ths tiwsrnor.r sno, Leonard
    V. Sqour, 4s 5. U. (3) 474; Clo+er Y. dlbrooht, 173 S.V&O(.
    “It shall bb unlacrPu1Tar any offiaor or
    court or this Stats, or of any zmniclpal (XlrLs-
    ion theroof,     to allou, audit, gay or order to
    bo polil,tha alaim of my porsoa for rralsq,
    compansation, ieJs, purqulsitos,      sntclmonts or
    sorvfcas, as an oiiicsr of tha Strto or of any
    mmiciyal division theraof, axcapf to auoh per-
    son as has bozn duly alactad such officer by
    the qwliriad rotors of this State, and irhose
    alection has been asoertained and ccrtlf%ed or
    dccl~ad in the anrrnner     required by lw, or who
    has bean appointed suoh ofricer by the lsrful
    8ppointing 9cmr under the Constitution and
    lP\rlsor this St&o, or who has bow odjudsed
    untitled thereto by a State court of competent
    jurisdiction, and has qualified as such off"tcor
    in aoeordonoo with law. Any person not so eloot-
    od, appointed and qualified shall not be entitled
    to roosivo    pay for  00rvic3s  a~ such offioer, or
    to erarcise the powers or jurisdiotion of such
    officm.      Tlr3official aota of any peraoa cl&~-
    Honorable 000. ii. Sheppard   - page   4
    *   8 right to exercise such power or jutis-
    alotion oontrary to the provisions of this
    law shall bo void.*
    If it be contended that Yr. Cramer is entitled to
    compensation as *Speoial DistricrtJudge*,,the answer is clear
    that the saw does not provide for the off'j$eoi *Special Dis-
    trict Judge*, where the offiae of *Metriot Judge' is vacant,
    Sinoe thore is no office of lSpecial District JudgtP provided
    for undar the oiFCUmatam3s, it Is obvious that Er. Cr.aamer
    can not be paid companeatlon authorized by law for .$peaial
    District JudgozP -- for tha oompensation provided 1s foPthe
    ocoupants of the de fur0 offiaes of *Special District Judge*.
    Pou are thwuforo respectfully advised that there
    exists no authority for paying Spwial Judge Cramr for his
    sarvlcos.
    This opinion, of course, In noaisd passes upon the
    Question of the validity of Judge Cramvr*s acts, decrees and
    tis.3
    likza,since such quostion is not involved in your inquiry.
    very truly yours
    ATTORXdX U2NSRAL OF T2US
    .I. I
    BY
    O&e ‘Spaosr
    Assistant
    

Document Info

Docket Number: O-4896

Judges: Gerald Mann

Filed Date: 7/2/1942

Precedential Status: Precedential

Modified Date: 2/18/2017