                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS



                                                 March 9, 2015



The Honorable R. Lowell Thompson                             Opinion No. KP-0007
Criminal District Attorney
Navarro County Courthouse                                    Re: Whether a county commissioners court
300 West 3rd Avenue, Suite 203                               must compensate a justice of the peace who
Corsicana, Texas 75110                                       retires prior to the end of his term
                                                             (RQ-1219-GA)

Dear Mr. Thompson:

         You ask several questions about whether a county commissioners court must pay a salary
and certain expenses to a justice of the peace who retires before the end of his or her term. 1 You
tell us that a justice of the peace announced his retirement, effective July 1, 2014, and has since
declined to discharge his duties as justice of the peace. See Request Letter at 1. You indicate that
the commissioners court accepted his retirement and has "declined to compel [the justice] to 'hold
over"' under article XVI, section 17 of the Texas Constitution. See id.; TEX. CONST. art. XVI,
§ 17. You note that the commissioners court also pays for his cell phone, health insurance, and a
monthly vehicle allowance. See Request Letter at 2. Under these circumstances you ask whether
the justice is entitled to be paid his salary and these other expenses. See id. at 1. You also question
whether the commissioners court has authority under article XVI, section 10 of the Texas
Constitution to make a deduction from his salary because he is no longer performing his justice of
the peace duties. See id. at 3--4; TEX. CONST. art. XVI,§ 10 (entitled "Deductions from Salary for
Neglect of Duty").

        We begin with article XVI, section 17, of the Texas Constitution, which is a mandatory
provision requiring that "[a]ll officers within this State shall continue to perform the duties of their
offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. The purpose
of this holdover provision is "to prevent vacancies in office and a consequent cessation of the
functions of government." Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322,
326-27 (Tex. Civ. App.-Amarillo 1938, no writ); see also Tex. Att'y Gen. Op. No. M-659 (1970)

         1
         See Letter from Honorable R. Lowell Thompson, Navarro Cnty. Crim. Dist. Att'y, to Honorable Greg
Abbott, Tex. Att'y Gen. at 4 (Sept. 3, 2014), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter"). You do not tell us in your request letter whether the commissioners court appointed a replacement.
See Request Letter at 1-2. However, a review of the commissioners court's meeting minutes reveals that a
replacement was appointed on July 14, 2014. Navarro Cnty. Comm'rs Ct. Meeting Minutes at 2 (Jul. 14, 2014),
http://www.co.navarro.tx.us/.
The Honorable R. Lowell Thompson - Page 2                 (KP-0007)




at 2-3 (noting that resignation of an officer is not deemed fully effective until the appointment and
qualification of his or her successor). A holdover officer is a "de jure" officer with all the authority
to act in his official capacity, as well as to receive compensation. See Tex. Att'y Gen. Op. No.
GA-0550 (2007) at 4; see also Tex. Att'y Gen. Op. No. JM-423 (1986) at 3 (defining "de jure"
officer as one with a legal right to the office). In the situation you describe, despite his announced
retirement or any contrary intention of the commissioners court, the Texas Constitution imposes
an obligation on the justice of the peace to continue to perform the duties that are prescribed by
law until his successor is appointed and qualified. Cf Gambill v. City ofDenton, 215 S. W.2d 389,
391 (Tex. Civ. App.-Fort Worth 1948, writ dism'd) (declining to hold that an officer's successor
became qualified only by virtue of an election such that holdover officer's salary continued until
such election).

          Certainly, there are court cases recognizing that the salary of a public officer is "an incident
of the office" that does not depend on the performance by the officer of official service. See Beard
v. City of Decatur, 64 Tex. 7, 11, 1885 WL 7110, at *3 (1885) ("[T]he salary or emolument
annexed to a public office is incident to the title to the office, and not to its occupation and
exercise."); see also Broom v. Tyler Cnty. Comm 'rs Ct., 560 S.W.2d 435, 437 (Tex. Civ. App.-
Beaumont 1977, no writ), City ofHouston v. Estes, 79 S.W. 848, 851 (Tex. Civ. App.-Galveston
1904, writ ref d), Cawthon v. City of Houston, 71 S.W. 329, 330 (Tex. Civ. App.-Galveston
1902, writ ref d). These cases, however, involve a public officer willing to discharge the duties
imposed on the officer by law. See Estes, 79 S.W. at 850 (acknowledging the officer established
at trial his readiness to perform his duty); Cawthon, 71 S.W. at 329 (noting the officer's willingness
to serve); Beard, 64 Tex. at 9, 1885 WL 7110, at *2 (noting that the city treasurer was willing to
perform his duty but was prevented from doing so by actions of the city council). On that basis,
these cases are distinguishable from a situation, such as you describe, in which an officer refuses
to perform any of his official duties in disregard of his constitutional duty. A court would probably
not consider this line of cases to be dispositive to your issue.

        Rather, a court would likely rely on the constitutional limitation on the use of public funds
found in Texas Constitution, article III, section 52(a). Article III, section 52(a) prohibits a political
subdivision's gratuitous grant of public money or a thing of value in aid of, or to any individual.
TEX. CONST. art. III, § 52(a); see Tex. Mun. League Intergov 'ti Risk Pool v. Tex. Workers' Comp.
Comm 'n, 74 S.W.3d 377, 383 (Tex. 2002) (stating that article III, section 52(a) prohibits the
gratuitous expenditure of public funds). The Texas Supreme Court has enumerated a three-part
test by which to determine whether a grant of money or thing of value is prohibited as gratuitous.
Id. at 384 (stating that an entity making a public expenditure must: (1) ensure the expenditure's
"predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain
public control over the funds to ensure that the public purpose is accomplished and to protect the
public's investment; and (3) ensure that the political subdivision receives a return benefit").
Relevant here, the three-part test requires that the expenditure must accomplish a public purpose
and be reciprocated with return consideration or a clear public benefit. See id. The determination
of whether a particular expenditure satisfies the three-part test is for the political subdivision to
make in the first instance, subject to judicial review for abuse of discretion. Tex. Att'y Gen. Op.
Nos. GA-0843 (2011) at 2, GA-0721 (2009) at 3, GA-0472 (2006) at 3; see also Comm 'rs Ct. of
Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) (recognizing district court's supervisory
The Honorable R. Lowell Thompson - Page 3              (KP-0007)




control over a commissioners court that abuses its discretion). Payment to this justice of the peace
for salary, expenses, allowances, and benefits beyond the date the officer refused to perform his
official duties would be gratuitous absent findings by the commissioners court that the expenditure
satisfies the three-part standard under article III, section 52(a).

        Because the initial article III, section 52(a) determination belongs to the commissioners
court, we cannot conclude as a matter of law that the justice of the peace in these circumstances is
entitled to the salary, expenses, allowances, and other benefits provided by the county to its
officers. See Tex. Att'y Gen. Op. No. GA-0843 (2011) at 2 (noting that such determination
depends on the facts of any particular transaction). Accordingly, we do not address your remaining
questions regarding article XVI, section 10 of the Texas Constitution. See generally Miller v.
James, 366 S.W.2d 118, 121 (Tex. Civ. App.-Austin 1963, no writ) (concluding that absent
enabling legislation, article XVI, section 10 provides "no authority for any such deductions to be
made").
The Honorable R. Lowell Thompson - Page 4            (KP-0007)




                                      SUMMARY

                      Article III, section 52(a) of the Texas Constitution prohibits
              the gratuitous payment of public funds for a private purpose. The
              determination of whether a public expenditure to a justice of the
              peace who refuses to perform his duties as a holdover officer upon
              his resignation is gratuitous belongs to the commissioners court in
              the first instance, subject to judicial review. Thus, we cannot
              conclude as a matter of law that the officer in these circumstances is
              entitled to the salary, expenses, allowances, and other benefits
              provided by the county.

                                             Very truly yours.

                                            ~~~~
                                             KEN PAXTON
                                             Attorney General of Texas


CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee
