Untitled Texas Attorney General Opinion ( 1973 )

The Honorable Gus L. Lamer Opinion No. H- 161
County Attorney
Walker County IL?: May a Justice of the
P. 0. Box 425 Peace receive salary
Huntsville, Texas 77340 for a period during
which he was holding
over awaiting appoint-
Dear Mr. Lamer: ment of his successor?
Your request for an opinion asks whether the county commissioners
court may legally pay a justice of the peace his salary for the period he
was holding over awaiting appointment of his successor.
You provide the facts in your request as follows: An individual
elected justice of the peace for a four year term in November ,197Owas
duly qualified and assumed the duties of such office on January 1, 1971.
On February 7, 1972, he filed as a candidate for the office of tax assessor
and collector, and was defeated on May 6, 1972. At all relevant times up
to the appointment of his successor on February 12, 1973, this man continued
to perform the duties of justice of the peace. He was paid his salary until
May 31, 1972, at which time the County Attorney advised the County Clerk
not to issue any further warrants for the payment of his salary in view of
Article 16, $65, of the Texas Constitution. He received no further payment
of salary from that date until his reappointment as successor on February 12,
1973.
Article 16, $65, of the Texas Constitution provides in part:
“Provided, however, if any of the officers named
herein [including justices of the peace] shall announce
their candidacy, or shall in fact become a candidate, in
any General, Special or Primary Election, for any office
of profit or trust under the laws of this State or the United
p. 746
The Honorable Gus L. Lanier, page 2 (H-161)
States other than the office then held, at any time
when the unexpired term of the office then held shall
exceed one (1) year, such announcement of candidacy
shall constitute an automatic resignation of the office
then held, and the vacancy thereby created shall be
filled pursuant to law in the same manner as other
vacancies for such office are filled. (emphasis added)
Under this provision of the Texas Constitution, wl sn the individual filed as
a candidate for the office of tax assessor and collector on February 7,1972,
he automatically resigned as justice of the peace.
Article 16, 517, of the Texas Constitution states:
“All officers within this State shall continue to
perform the duties of their offices until their successors
shall be duly qualified. ”
The recognized purpose of this provision is to insure against vacancies in
office and a consequent cessation of the functions of government. Section
17 provides for officers to hold over in the performance of the duties of
office even after resignation until a successor has been elected or appointed
and has qualified. The officer who has resigned retains his position, in
spite of his resignation, as a de jure officer. Plains Common Consolidated
School Dist. No. 1 of Yoakum County v. Hayhurst, 122 S. W. 2d 322 (Tex. Civ.
App. 3 Amarillo, 1938, no writ): Keen v. Featherston, 69 S. W. 983 (Tex. Civ.
APP. 8 1902. err. ref). See also Attorney General Opinions M-659 (1970); C-43
(1963) and WW-1253 (1962). If he shows himself to be a de jure officer, he
will he permitted to recover the compensation incident to the office. Jones
v. City of Uvalde, 79 S. W. 2d 341 (Tex. Civ.App.. San Antonio, 1935, err.
ref.); City of San Antonio Y. Coultress, 169 S. W. 917 (Tex. Civ.App., San
Antonio, 1914, dis’m. w. o. j.). However, if, prior to qualification of his
successor he should accept an incompatible office, he will not remain a de
jure officer. Compare Pruitt v. Glen Rose Independent School Dist. No. 1,
84 S. W. 2d 1004 (Tex. 1935); ~Lowe v. State, 201 S. W. 986 (Tex. Crim. 1918).
It is our opinion therefore that the justice of the peace continued to hold
over as a de jure officer following his aut.omatic resignation, under Article 16,
p. 747
The Honorable Gus L. Lanier, page 3 (H-161)
§ 65, Texas Constitution, and is therefore entitled to compensation for this
period.
SUMMARY
A de jure justice of the peace may receive a
salary for the period during which he was holding
over awaiting appointment of his successor.
Very truly yours,
AP,,p;lED:
\
P C’F’Y L. HILL
Attorney General of Texas
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