                     E                             ENE



                            Ausniu    1s. Trcxas
 GERALD C. MANN
*-RNEYG?ENERAI.




      Honorable R. A. Taylor, Jr.
      County Attorney
      Zavalla County
      Crystal City, Texas
      Dear Sir:                      Opinion No. O-3743
                                     Ri?: Authority of county judge,
                                          inducted as reserve officer into
                                          active dlitarg service of the
                                          United States, to continue to
                                          hold the office of county judge;
                                          his authority to appoint a
                                          deputy or assistant to act during
                                          his absence, and related questions.
               We have for acknowledgement your letter requesting the
      opinion of this department upon the following questions:
                  '"(1) Can a County Judge, who holds a com-
           mission in the Officers Reserve Corps of the United
           states,   continue to hold the office of County Judge
           after being called in and.inducted for active duty
           aa an officer in the Officers Reserve Corps of the
           United States?
                “(2)  If so, should a special judge be ap-
           pointed to act in hls stead during the period of
           his active service, or could he appoint an assistant
           to act during said period, and to what compensation
           would the special judge or assistant judge be en-
           titled where the regular judge is paid on a fee and
           ex-officio salary basis?
                “(3)  If not, would said County Judge, by ac-
           cepting assignment and being inducted for active duty
           as an officer in the Officers Reserve Corps of the
           United States, abandon the office of County Judge
           aridthus create a vacancy which should be filled by
           ar,appointment by the Commissioners' Court?"
               Your first questlon ms'c be answered in the affirmative,
      upon the authority of Carpenter v. Sheppard, 145 S.W. (2d) 562.
      As an original proposition, we were of the same opinion that ya
      express concerning the interpretatfon to be placed on Article 16,
Honorable R. A. Taylor, Jr.,   page 2       o-3743


Section 40 of the Texas Constitution, -- that is, that the purpose
of the proviso is, as you put it, "to except such officers so
long as they are inactive and not on active duty . .    w However,
this precise contention was presented to the Supreme Co&t by
this department in the case of Carpenter v. Sheppard, and the
court overruled it. In that case, the Supreme Court held that
an officer of the Texas National Guard ordered as such into the
active military service of the United States and engaged as an
officer in such service, remained "so far as Texas is concerned"
as respects the application of the proviso to Article 16, Sec-
tion 40, an officer in the Texas National Guard. In other words,
the court in such case held that the officer is classified, for
the purposes of the proviso to Article 16, Section 40,'accordir-g
to the status of his origin . . . . that the proviso was intended
by the people to apply to the National Guard officer even after
he acquired the status of an officer in the active military
service of the United States, since he was ordered into~that
service by virtue of his original status as National Guard officer.
         This holding cannot logically or reasonably be restricted
to National Guardsmen, but must also be applied to persons in the
other classifications. Hence, an officer of the Reserve Corps,
ordered as such into active service, still occupies, so far as
the application of the proviso to Article 16, Section 40, is con-
cerned, his status of origin, to-wit, the status of officer of
the Reserve Corps.
         Your second question is answered to the effect that a
special judge, if the county judge fails to appear at the time
for holding the court, or should be absent during the time or un-
able carunwilling to hold the court, should be elected in the
manner provided by Article 1934, R.C.S.
         It is our opinion that Article 3902, R.C.S. does not
authorize the county judge to appoint a deputy or assistant to
act as county judge during the period of his absence.
         It is a familiar rule that judicial authority cannot be
delegated. The office of county judge is created by the Consti-
tution, and the manner by which it is to be filled is provided
in that document. The duties of the county judge require for
their execution the exercise of judgment and discretion. The
people, by electing a county judge, repose special confidence in
the judgment and discretion of the person thus elected to fill
the office. It may be doubted whether the Legislature in such
circumstances, may create the office of deputy or assistant
county judge and permit the county judge to delegate the exercise
of his judicial power to such deputy or assistant. Parenthetically,
it is significant that the office of "deputy" or "assistant."judge
is, so far as we can determine, unknown to our system of juris-
prudence.
Honorable R. A. Taylor, Jr.,   page 3      o-3743


         Whatever the scope of the legislatlve power may be, how-
ever, we think it clear that the authority to delegate the exer-
cise of judicial power, or the authority directly conferred by
the Legislature upon the “deputy” to exercise it, must be express.
It is not to be inferred from the mere permission to appoint
deputies, assistants, ana clerks, for the nature of the .authoritg
to be exercised by such subordinates Is not prescribed by law.
In such instance, it is rather to be assumed that the Legislature
contemplates the delegation to the deputy or assistants of the
authority to discharge ministerial or administrative functions of
the principal office.
         No statue creates or defines the powers and duties of
the office of “deputy” or “assistant” county judge. For the
reason stated above, we hold that Article 3902 does not authorize
the appointment by the county judge of a deputy or assistant
vested with authority to act as the county judge himself might
with respect to matters involving the exercise of judgment and
discre~tion,or the exercise of the judicial power.
         With respect to the second branch of your second question,
to-wit, as to the compensation to be paid the special judge
elected under Article 1934, where the regular judge is paid on a
fee and ex officio salary basis, it is the opinion of this ae-
partmetltthat the Legislature has failed to provide any compensa-
tion to be paid a special county judge elected under the provi-
sion o,fArticle 1934, and, therefore, such special county judge
is not entitled to receive:~any compensation. Frasier v. Dunay
County (Neb.) 213 N.W. 371.
         Article 1930 through and including Article 1933, R.C.S.,
providing for a special judge to be agreed upon by the parties
or appointed by the Governor in the instance where the judge of
the county court is disqualified to try a civil case~pelndingin
that court, were passed by Acts of Legislature, 1893, at Page 75.
In that law no provision was made for the election of a special
judge in event of the absence, inability, or unwillingness to hold
the court of the regular county judge. That law, however, pro-
vided as follows:
          If. . . Any special judge agreed upon or
    appointed to try cases &hall receive the same pay
    for his services as is provided by law for county
    judge.’
It is obvious, therefore, that at the time this law was passed,
the words “agreed upon” had reference to the special judge agreed
upon by the parties, and the words “appointed to try cases” had
reference to the special county judge appointed by the Governor.
Honorable R. A. Taylor, Jr.,   page 4       o-3743



         By Acts, 1897, page 7, the Legislature amended the
chapter providing for the appointment of special judges by an
act the caption of which reads as follows:
        "An Act to be Entitled an Act to Amend Chapter 1,
   Tit&e 29 of the Revised Civil Statutes of the State
   of 'lexas,adopted at the Regular Sessioncf the 24th
   Legislature, and to add to said chapter two articles,
   numbered 1132b and ll32c, respectively, 'providing for
   the election and qualification of special county
   judges in case of the absence of the regular county
   judge or of his inability or refusal to hold court;
   and providing further for the election of a judge
   when said special judge is absent or is unable or
   refuses to act.'"
         This act made no provision for the compensation of such
special county judges so elected. Such act has been brought
forward in the present codification, without substantial change,
as Article 1934. It will be observed that this article still
fails to provide for any compensation for a special judge
elected under said circumstances.
         The failure of the Legislature to provide for compensa-
tion for a special county judge elected under Article 1934 may
have been inadvertent, or it may have been intentional. We are
not permitted to speculate upon this. As pointed out in the case
of Frasier v. Dundy County, abovecited, it is a sufficient
answer to any claim that the special county judge so elected
should be entitled to compensation, to point out that the law
fails to provide for such compensation.
         Your third question, as to whether the county judge, by
accepting assignment and being inducted for active duty as an
officer in the Officers Reserve Corps of the United States, would
thus abandon the office of county judge and create a vacancy to
be filled by appointment of the cotmnissioners~court, is answered
by our Opinion No. O-3448, copyof which is enclosed herewith for
your information.
                               Yours very truly,
Approved Opinion               ATTORNEY GENERAL OF TEXAS
Committee By s/BWB
Chairman                       By s/R.W. Fairchild
                                  Richard W. Fairchild
                                  Assistant
RWF:fs:wc
Enclosure
APPROVEI)AUG 11, 1941 s/GERAID C. MANN ATTORNEY GENERA OF TEXAS
