                   THEA~TORNEYGENERAL
                            OF -WAS
                            AUSTIN     aa.T~xas

   WVILL  WILSON
A-RNEYGENERAL
                            May 22, 1961

     Honorable W. G. Walley, Jr.
     Acting Criminal District Attorney
     Jefferson County
     Beaumont, Texas
                             Opinion NO. ~~-1064
                             Re:     Emoluments of the office of
                                     Criminal District Attorney
                                     while the elected Criminal
                                     District Attorney Is suspend-
                                     ed from office pending removal
                                     proceedings, and related ques-
     Dear Mr. Walley:                tlons.
          You have requested an opinion on the following ques-
     tlons:
                 "1. Whether or not, during the time a
           Criminal District Attorney is suspended from
           office, and prior to his removal from that
           office, he is entitled to the financial emolu-
           ments of that office until such time as he may
           be removed?

                "2. Should the answer to the first ques-
          tion be In the affirmative, then should pay-
          ments of such emoluments be suspended and paid
          over to him at the actual tlme'of his removal,
          If he should be eventually removed or should he
          be paid as was the custom In the past?

                 w3. In the event of a temporary suspension
           of a constable from office, and prior to his re-
           moval from that office, Is he entitled to the
           financial emoluments of that office until such
           time as he may be removed?
                =4. Should the answer to the third ques-
          tion be in the affirmative, then should payments
          of such emoluments be suspended and paid over to
Honorable W. G. Walley, Jr., page 2 (~~-1064)


     him at the actual time of his removal, If he
     should be eventually removed or should he be
     paid as was the custom in the past.

           “5. Does the Commissioners Court have
     the authority to pay the emoluments of office
     to the person discharging the duties of the
     Criminal District Attorneys office during the
     time that such elected Criminal District At-
     torney is suspended?
           “6. Does the Commissioners Court have the
     authority to pay the emoluments of office to
     the person discharging the duty of a Constable
     during the time that such elected Constable Is
     suspended?"
     When a person undertakes to discharge the duties of any
public office In Texas he exercises those duties in one of
three possible classifications, to-wit: (a) officer de jure,
(b) officer de facto, or, (c) a mere intruder in the office.
     A de jure officer is entitled to the emoluments of that
office so long as the individual is a de jure officer. Board
v. City of Decatur, 64 Tex. 7 (1885); City of Houston v.
Estes, 79 S W 846 (Clv;App. 1904 error ref ) 34 Tex.Jur.
-13,      Public Officers, Sec. 106. Therefocef we believe
that the answer to your questions is dependent on whether an
Individual suspended from office by a court of competent juris-
diction, pending removal proceedings, remains a de jure officer
even though he is no longer performing the duties of that of-
fice. Your request, therefore, Is answered by the principles
of law announced in Chownlng v. Boger, 2 Wlll.Tex.Clv. Cases
650 (1885).   In that case the regular elected and qualified
sheriff had been temporarily suspended from office by the judge
of the district court and one A. T. Boger had been appointed
to perform the duties of the office of sheriff pending removal
proceedings. Subsequent to the suspension and prior to the
hearing on the removal proceedings, the duly elected sheriff
resigned from office and the commissioners' court, believing
that such resignation created a vacancy In the office, ap-
pointed one H. Chownlng sheriff. The court held that Boger,
by virtue of the appolntment, was sheriff de facto and the
elected sheriff, prior to resignation, was the de jure offl-
cer and entitled to the emoluments of the office prior to
resignation and that Chownlng, after his appointment was the
de jure sheriff and was then entltled to such emoluments.
-.




     Honorable W. G. Walley, Jr.,   page 3 (w-1064)


          You are therefore advised In answer to Questions Nos.
     1, 3 and 6 that duly elected officers suspended from office
     by a court of competent jurisdiction pending removal pro-
     ceedings are entitled to their statutory compensation during
     the time of suspension prior to hearlng on removal proceedings.
          Since It is to the Interest of the public that the duties
     of an office be performed, de facto officers are entitled to
     compensation of services rendered. McAllen v. Rhodes, 65 Tex.
     348 (1886).  It Is our opinion that a de facto officer 1s en-
     titled to receive the same compensation as a de jure officer
     In the same position. Attorney General's Opinion 0-31.58(1943)
     and authorities cited therein.
          Summarizing the foregoing, and answering your questions
     categorically, you are advised:
          (1) During the time a Criminal District Attorney is sus-
     pended from office and prior to his removal from that office,
     he Is entitled to the financial emoluments of that office until
     such time as he may be removed.
          (2) Payments of such emoluments should not be suspended
     but should be paid to him In regular Installments.
          (3) A constable temporarily suspended from office Is en-
     titled to the financial emoluments of that office until such
     time as he may be removed.
          (4) Payments of such emoluments should not be suspended
     but should be paid to him In regular installments.
          (5) The person discharging the duties of the Criminal Dis-
     trlct Attorney's office during the time that the elected Criminal
     District Attorney Is suspended 1s entitled to receive the same
     compensation as the elected Criminal District Attorney during
     the period of time he discharges the duties of the office of
     Criminal District Attorney.
          (6)  The person discharging the duties of Constable during
     the time the elected Constable is suspended Is entitled to re-
     ceive the same compensation as the elected Constable during the
     time he discharges the duties of the office of Constable.
                              SUMMARY
            Individuals duly suspended frorroffice pend-
            ing removal proceedings will remain de jure
Honorable W. G. Walley,   Jr.,     page 4 (~-lo641


        officers until removal and are entitled
        to their statutory compensation during such
        time.
        Individuals duly appointed to discharge
        the duties of the office during the suspen-
        sion period are entitled to the same com-
        pensation as the elected officer to the
        position during the time they actually dls-
        charge the duties of the office.

                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas



JR:ms                                Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene Fletcher
Elmer McVey
Gordon C. Cass
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbitt
