  OFFICE   OF   THE   ATTORNEY     GENERAL   OF   TEXAS
                          AUSTIN



                                         l?ebrwryx,4,
                                                    1939
                                                  \

Ron. R;S. Wyche,
Gregg County
Langview,Texas
Dear rs. Nyche:




ing questlon:




                            Revised Clvfl Statutes reads



                              thousand (8 000) pop-
     ulation according to the    eaedlng sederal
     Census mag.~appoint one (1r Deputy and no
     more; and each Justioe Preoinot ha~f.nga oity
     or tom of eight   thousand (8,000) and less
     than fort& thousand (40,000)population ao-
     cording to the preoedlng Federal Celwaa pay
     appoint two (2) Deputies and no more; and in          ...    '
                                                                 ,,
     eaoh Justioe Precinot having a town or city
Hon. R.S. Ilyahe,

    of forty thousand'(aO,OOO)population or
    more according to the preceding Federal Cen-.
    sus nay appoint five (5) DoDuties and~no more,
    and each and every instanoe said Deputy Con-
    stables shall qualify as required or Deputy
    SlltXiffS.

          Section 2. When the Constable ln eaoh
    and every instance named and desoribed in the
    preaeding section of this Aat shall desire
    to make appointment of a Deputy or Deputies,
    as to owe may be, said Constable shall first
    make written applioationto the Cammissioners*
    Court of his County.shovrlngthatit Is neoes-
    sary for suoh Constable to have.the Deputy or
    Deputies requested in order to properly handle
    the business of his offloe originatingin the
    Preoinot in whioh suah Constable has.been s-
    leoted, giving the name of eaoh proposed ap-
    pointee; and If the Commissioners*Court shall
    Bind that the Constable is in need of the Dep-
    uty or Deputies requested to handle the busl-
    ness originatingIn his Precinct, then and In
    that event, and in that event only the Com-
    missioners' Court shall approve an4 aonfirm
    the appointment of the Deputy or Deputies pro-
    vided by this Aot.
           Section 3. "Any person who serves as
     a Deputy Bonstable without the provisions here-
     of hnving been aomplled with relative to his
     appofntmentor any Constable who issues a Dep-
     utyship without the oonsent and approval of
     the Commlssloners*Court shall be fined not
     less than V5.ft.y
                     Dollars ($50.00 nor more than
     One Thousand Dollars ($liOOO.OO1.*
                                       ,
           Amerlcnn Law Reports, Vol. 93, p. 269, states
that:
           uSome authorities have expressly held
                      I-
                  .”
                ,_I’                         ;*
                                  ,,,‘. .L. 67
             d/‘/i        d/ 223
           ,.’                     ,’
                                  J
                                                  /</I    c’)
          (4’~                 ./       ,,+ -./ ,’
Eon. X.3. ?iycho,Februery%, lQ39, ?aCe 3 '
                           ,+--
     that tho fact the& is no de jure officer
     does not ^^. ohnnge the genernl rule      . that_ a de
                                                          .
     facto orrxer cannot rooover trieemoluments
     of the office so as to onable him to rocov-
     er for his services, cttleast whore he knows
     that his z-if&.to office is disputed."
           Citing Geams vs ‘;lest Yrankfust, 233 Ill. 479;
Eubanks vs Xontgomery County, 105 5.X. 418. Also citing
many other authoritieswhioh we do not deem necessargto
mention here.
             The mere assumptionof the.office by
       performanoe of one of even several ants ap-
       propriate to it without any recognition by
       the appointive power may not be ntifioient
       to oonstitute one a de facto officer and it
       has been held that (Iperson whose only olaim
       to orfice Is under appointmentwhioh.ls void
       and not merely irregular and fnformsl Is not
       a de facto offioer, but a mere intruder."
       Tar. Jnr., Vol. 34, p. 617, Sso.~lS3. Bin-
       count VE Parker, 27 Ter. 558; ldurrayvs State,
       48 Grim. Reports, 219, 87 S.ti.349.
           In view of tho foregoing authorities,you'sre
respeutfullyadviood that it is the opinion of this de-
partment that the evident purpose of Article 6879a is to
prohibit any psrson from claiming to be a de faoto deputy
constable. The Legislaturemust have had In mind an ex-
isting evi1~hen~thi.slaw, containing penal features, 17~
passed. Thorofore,,fncts,which might ordinarily consti-
tute one a de facto ofricer, have no applicationhare
and tho deputy mentioned in yourletter is not a de facto
offiaor and the CommIssionera*Court hae no autborlty to
pay him for his service upon approval of his ola5.mby the
autitor.

             Trusting that the foregoing answers your in-
/      Yours very truly
    A.i'TOIU~G'3XJ2RAL
                     CF T?X,ZS
