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




        !t ‘: ’
          I
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   DAVID M. KENDALL,              Chairman
   Opinion Committee




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