Untitled Texas Attorney General Opinion ( 1942 )

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THEAITORNEY GENERAL
OFTEXAS
Honorable C. H. Cavness
State Auditor
Austin, Texas
Dear Mr. Cavness: Opinion No. O-4862
Re: Qualifying acts required of
State, district, countg'and
precinct officers prerequi-
site to the exercise of func-
tions and right to fees or
compensation therefor.
Your letter of September 16, 1942, submitting the
following questions has been given our careful consideration:
"1 o Apart from any other qualifying acts re-
quired by law, may any officer legally enter upon
the duties of office before taking the official
oath specified by law as a qualifying act for that
office?
"2 " In the event an officer be duly elected
or appointed to an office for which the law speci-
fies more than one qualifying act, each being a
dlst1nctlg separate performance, is it an absolute
requirement that all such acts be entirely perform-
ed before such officer may enter upon the duties
of the office?
"3 . Is any~officer entitled to receive any
fees or compensation whatsoever for the perform-
ance of official services by virtue of having com-
plied with one or more of the statutory provisibns
applying to qualification for his office, but who
has failed or refused to perform one, or more than
one, other qualifying act specified by the Constl-
tution or Statutes of the State?
"4. In the event an elected or appointed of-
ficer has failed or refused to qualify in any one
or more particulars demanded as a condition prece-
dent to entering upon the duties and receiving the
fees or compensation of office, although the officer
assumed all rights and prerogatives of the office
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Honorable C. H. Cavness, page 2 o-4862
and continuously exercised them for a long period
of time the same In all respects as if fully qual-
ified to do so, what corrective measures are re-
quired and upon whom devolves the duty of institut-
ing the corrective procedure?
“5 . In connection with Question 4, should
such an officer be found to have been in posses-
sion of the office for an unreasonably long period
of time though never fully legally qualified ~to
begin upon the duties of It, does the law require
that he be forthwith removed by due process and
he or his successor validly installed by election
or appointment, or may he be legally permitted to
perform the unfulfilled requirements of qualifica-
tion and continue in office with no regard or re-
sponsibility for performance of official acts and
collection of fees and compensation therefor dur-
ing the period of time he may be consldered to
have been not qualified and in illegal possession
of the office?
“6. If an officer shall have failed or re-
fused to fully perform the qualifying acts re-
quired by law to hold his offlce, and to have re-
ceived fees, compensation, or other valuable con-
siderations to which it may be held he was not
therefore legally entitled, Is any process for the
recovery of same provided by law and, if so, upon
whom devolves the duty of Instituting such action?"
Answering Question No. 1: As submitted, it is dif-
flcult, if not impossible, to answer. In order for an officer
to legally enter upon his duties, he should, and strictly
speaking, perhaps must, take the official oath, and If re-
quired, give a bond.
Our courts have uniformly held, however, that
where a person, who under a color of title, exercises the
functions and performs the tasks of an officer, he is in law
a de facto officer, although he may not be a de jure officer.
See State v. Jordan, 28 S. W. (2) 921.
Question No. 2: We think what we have said rela-
tive to Question No. 1 above will answer your Question No. 2.
, If there is any particular officer you destre to inquire
I about, or any particular state of facts, we would be glad to
give you an opinion based on the specific data.
QuestIon No. 3: In response to your Question 3,
Honorable C. H. Cavness, page 3 O-4862
we call your attention to Article 16 of the Revised Civil
Statutes, which requires each officer In this State, whether
elected or appointed, before enterlng upon his duties, to
take and subscribe to the oath of office prescribed by
Article XVI, Section 1, of the Constitution.
Article IV, Section20, of our State Constitution
provides that all commissions shall be signed by the Gover-
nor, and attested by the Secretary of State.
Article 3882, of the Revised Civil Statutes, pro-
vides:
"NO official who fails or refuses to take
out a commission shall be entitled to collect
or receive either from the State or from indivi-
duals any money as fees of office or compensa-
tion for official services. Neither the Comptrol-
ler, Commissioners' Court, County Auditor, nor
any other person, shall approve or pay any claim
on account in favor of any such officer who has
so failed or refused."
Since the Constitution of Texas provides that only
the Governor of Texas can issue commissions to the elected
officers, and that same must be attested by the Secretary of
State, and since Article.3882 of the Revised Civil Statutes
prohibits an officer from receiving any pay, who falls or
refuses to take out his commission, you are advised that no
officer who has thus failed to obtain his commission is en-
titled to receive or be paid any compensation.
'In view of the fact that before a commission can
be issued the qualifying officer must submit sufficient proof
to the Governor that he has been either elected or appointed,
has executed the bond, and performed such other acts as are
necessary to entitle him to the commission, we deem it un-
necessary to speculate on any other condition unless some
specific facts are submitted.
Your Questions Nos. 4, 5 and 6 present practically
the same matter, and as such, we could not give an opinion
that will apply to all conditions and circumstances that
might arise.
If it becomes necessary to have corrective legisla-
tion, that duty of course would fall upon the Legislature.
If an elective or appointive officer fails to com-
ply with the law, and does not qualify, his office in some
Honorable C. H. Cavness, page 4 o-4862
cases may be declared vacant by the commissioners' court, or
he may be removed by quo warrant0 proceedings.
If he has been paid fees that he was not entitled
to under the law, either as a de facto or a de jure officer.
suit could be brought to recover same. If there are any
such conditions, it would be best for you to submit the facts
surrounding each case, and the Attorney General could then
determine the proper course to pursue.
Articles 6887 and 1706 of the Revised Statutes pro-
vide that where a sheriff and/or a county treasurer falls to
qualify within twenty days, his office may be deemed vacant.
Article 1928, 1937 and 2340 of the Revised Clvll
Statutes provide that the county judge, county cl:erk,and
members of the commissioners' court, before they enter upon
their duties, shall take the oath of office and give bond.
Article XVI, Section 17, of the State Constitution
provides that all officers within this State shall continue
to perform the duties of their offices until their successors
shall be duly qualified. This provision has been construed
by our courts.
In Robinson v. State, 28 S.W. 567, it appears that
Robinson was elected sheriff of Hartley County for a second
term, but failed ,toqualify as such. After he had served ap-
proximately one year of his second term, the County Attorney
instituted a quo warrant0 proceeding against him In the Dis-
trict Court to oust him from said office. Among other de-
fenses, the sheriff claimed that since Section 17, of Article
XVI, of the Constitution provides "that all officers within
this State shall continue to perform the duties of their of-
fices until their successors shall be duly qualified", he had
a right to hold the office under his former election. In
overruling this contention, the court used this language In
the last paragraph of its opinion:
'* * * To sustain this position would be
to hold that there would be no necessity for an
officer to qualify but one time, as long as he
can be successful in being elected to succeed
himself. We think his election the second time
would, upon his failing to qualify thereunder,
create such a vacancy in the office as would
authorize the commissioners' court to appoint
another to fill it;"
In Goehenour v. Anderson, 81 S.W. 104, the court,
Honorable C. H. Cavness, page 5 o-4862
In passing upon the question as to whether there was a vacancy
in the county -judge'soffice, by reason of his having failed
to gLve the required bond, used this language:
' l * * If the commissioners really considered
and rejected as Insufficient the bonds tendered by
appellant, (county judge) and he failed to tender
other and sufficient bonds within the time prescribed
by law, a vacancy was created in the office of county
judge, which they (the Commissioners) were author-
lzed to fill."
In Flatan v. State, 56 Tex. 93, the court used this
language:
"Under the laws of this state, it is necessary
for a person who has been elected to the office of
sheriff to take the oath of office and to execute
the bonds prescribed by law. After a person elected
receives his certificate of election, which is all
the notice to which he is entitled, it Is his right
and duty to qualify; wtthout quallflcation he has
no right to the office, and it is Incumbent upon
such person so to qualify without notification so to
do from the county commissioners' court, and without
notice that the office will be declared vacant, and
filled if he neglects or refuses to qualify."
In State v. Box, 78 S.W. 982, the court, in holding
that the sheriff, who had been elected for a second term, was
required to give a new bond. in order to keep the Commisslon-
ers ' court from declaring the office vacant, used this language:
"As to appellee's claim that he was entltled
to'hold over, notwithstanding his failure to qualify,
because he had already taken the oath of office and
given bond as appointee of the commissioners' court,
we need only cite the opinion of Justice Head in
Robinson v. State, 28 S.W. 566, holding to the con-
trary."
We trust the above sufficiently answers your
questions.
Honorable C. R. Cavness, page 6 O-4862
Very truly yours
ATTORNEY GENWAL OF TEXAS
By s/Geo.W. Barcus
Geo.W. Bareus
Assistant
GWB:MFl:wc
APPROVED OCT 9, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/RWF Chairman