Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
l?ebrwryx,4,
1939
\
Ron. R;S. Wyche,
Gregg County
Langview,Texas
Dear rs. Nyche:
ing questlon:
Revised Clvfl Statutes reads
thousand (8 000) pop-
ulation according to the eaedlng sederal
Census mag.~appoint one (1r Deputy and no
more; and each Justioe Preoinot ha~f.nga oity
or tom of eight thousand (8,000) and less
than fort& thousand (40,000)population ao-
cording to the preoedlng Federal Celwaa pay
appoint two (2) Deputies and no more; and in ... '
,,
eaoh Justioe Precinot having a town or city
Hon. R.S. Ilyahe,
of forty thousand'(aO,OOO)population or
more according to the preceding Federal Cen-.
sus nay appoint five (5) DoDuties and~no more,
and each and every instanoe said Deputy Con-
stables shall qualify as required or Deputy
SlltXiffS.
Section 2. When the Constable ln eaoh
and every instance named and desoribed in the
preaeding section of this Aat shall desire
to make appointment of a Deputy or Deputies,
as to owe may be, said Constable shall first
make written applioationto the Cammissioners*
Court of his County.shovrlngthatit Is neoes-
sary for suoh Constable to have.the Deputy or
Deputies requested in order to properly handle
the business of his offloe originatingin the
Preoinot in whioh suah Constable has.been s-
leoted, giving the name of eaoh proposed ap-
pointee; and If the Commissioners*Court shall
Bind that the Constable is in need of the Dep-
uty or Deputies requested to handle the busl-
ness originatingIn his Precinct, then and In
that event, and in that event only the Com-
missioners' Court shall approve an4 aonfirm
the appointment of the Deputy or Deputies pro-
vided by this Aot.
Section 3. "Any person who serves as
a Deputy Bonstable without the provisions here-
of hnving been aomplled with relative to his
appofntmentor any Constable who issues a Dep-
utyship without the oonsent and approval of
the Commlssloners*Court shall be fined not
less than V5.ft.y
Dollars ($50.00 nor more than
One Thousand Dollars ($liOOO.OO1.*
,
Amerlcnn Law Reports, Vol. 93, p. 269, states
that:
uSome authorities have expressly held
I-
.”
,_I’ ;*
,,,‘. .L. 67
d/‘/i d/ 223
,.’ ,’
J
/233 Ill. 479;
Eubanks vs Xontgomery County, 105 5.X. 418. Also citing
many other authoritieswhioh we do not deem necessargto
mention here.
The mere assumptionof the.office by
performanoe of one of even several ants ap-
propriate to it without any recognition by
the appointive power may not be ntifioient
to oonstitute one a de facto officer and it
has been held that (Iperson whose only olaim
to orfice Is under appointmentwhioh.ls void
and not merely irregular and fnformsl Is not
a de facto offioer, but a mere intruder."
Tar. Jnr., Vol. 34, p. 617, Sso.~lS3. Bin-
count VE Parker, 27 Ter. 558; ldurrayvs State,
48 Grim. Reports, 219, 87 S.ti.349.
In view of tho foregoing authorities,you'sre
respeutfullyadviood that it is the opinion of this de-
partment that the evident purpose of Article 6879a is to
prohibit any psrson from claiming to be a de faoto deputy
constable. The Legislaturemust have had In mind an ex-
isting evi1~hen~thi.slaw, containing penal features, 17~
passed. Thorofore,,fncts,which might ordinarily consti-
tute one a de facto ofricer, have no applicationhare
and tho deputy mentioned in yourletter is not a de facto
offiaor and the CommIssionera*Court hae no autborlty to
pay him for his service upon approval of his ola5.mby the
autitor.
Trusting that the foregoing answers your in-
/ Yours very truly
A.i'TOIU~G'3XJ2RAL
CF T?X,ZS