                   THE   ATTORNEY         GENERAL
                             0F TEXAS


                             December 2, 1988



     Honorable Bob Bullock              Opinion No. JR-989
     Comptroller of Public Accounts
     L.B.J. State Office Building       Re: Whether the Comptroller
     Austin, Texas 78774                may pay the salary of a
                                        visiting judge who has been
                                        improperly appointed
                                        (RQ-1494)
     Dear Mr. Bullock:
          You ask whether the Comptroller of Public Accounts may
     lawfully pay the salary of a visiting judge who was appoint-
     ed to preside over a case without all of the statutory
     formalities for that appointment having been fulfilled.
          Your question appears to have been prompted by a recent
-    opinion of the Supreme Court of Texas in State v. Preslar,
     751 S.W.2d 477 (Tex. 1988). Insofar as is pertinent to your
     inquiry, Preslar held that the~chief Justice of the Supreme
     Court of Texas lacks the authority to assign a retired judge
     to sit as a visiting judge within the administrative region
     of his residence absent the special circumstances enumerated
     in section 74.049 of the Government Code.1


          1.   Section 74.049 provides:
                  The chief justice may make assignments
               within an administrative resion and perform
               the other duties of a presiding judge in the
               following situations:
                  (1) on the death or resignation of the
               presiding judge and     until a  successor
               presiding judge is appointed:

                  (2)  on notification to the chief justice
               by the presiding judge or other appropriate
               source that an absence, disabling illness,
               or other incapacity of the presiding judge
-.                                            (Footnote Continued)




                                   p. 5056
Honorable Bob Bullock - Page 2   (JM-989)




     In Preslar, the question of payment of the visiting
judge for services rendered, if any, was not an issue.   The
question before the court arose in an original mandamus pro-
ceeding challenging the authority of the Chief Justice of
the Supreme Court to assign a retired judge to sit as a
visiting judge within the administrative region where he
resides.
     A de facto officer may recover compensation      for
services rendered. Harris Countv v. Hunt, 388 S.W.2d 459,
465 (Tex. Civ. APP. - Houston 1965, no writ); 60 Tex.
Jur. 3d Public Officers and Smnlovees § 257. On the other
hand, a de facto officer may not recover compensation for
services not rendered. Glenn v. Town of Trenton, 256 S.W.
631 (Tex. Civ. App. - Texarkana, 1923, no writ).
     While you do not state what statutory formalities were
omitted in the appointment of the visiting judge, we believe
the guidelines set forth in the following authorities will
be of assistance to you in determining whether the visiting
judge has served in a de facto posture and is entitled to be
paid for services rendered.
     The policy underlying the doctrine of de facto officers
was stated in French v. State, 572 S.W.Zd 934, 935 (Tex.
Crim. App. 1978, no pet.).
           The doctrine of' officers de facto was
        created as a matter    of public policy to
        protect both an officer appointed by some
        power having \color' of authority to appoint
        him and the public relying on the validity of
        that appointment.
     In Attorney General Opinion JM-874 (1988) the matter of
the validity of the actions taken by a commissioner during


(Footnote Continued)
         prevents the judge from performing     his
         official duties for a period of time and
         until the presiding judge is again able to
         perform the duties; and
            (3) in a particular matter in which the
         presiding judge disqualifies himself from
         performing the duties of presiding judge in
         that matter. (Emphasis added.)




                             p. 5057
    I   Honorable Bob Bullock - Page 3    (JM-989)




        the tenure of an appointee member          subsequently   found
        ineligible was addressed, as follows:
                   A de facto officer is one who, by his
                acts, has the appearance of holding the
                office he has assumed, but who in fact does
                not validly hold the office.      Germanv v.
                m,    222 s.W.Zd 172, 176 (Tex. Civ. App. -
                Fort Worth 1949, writ ref'd n.r.e.): Citv of
                Christine v. Johnson, 255 S.W. 629 (Tex. CiV.
                APP. - San Antonio 1923, no writ).        The
                designation of 'de facto officer' may attach
                to one who holds office under color of an
                appointment that is subsequently invalidated
                on the grounds     that the appointee     was
                ineligible. Norton v. Shelbv Countv        118
                U.S. 425, 446 (1886); Sx carte Trace;, 93
                S.W. 538, 542 (Tex. Crim. App. 1905).    Acts
                performed by a de facto officer under color
                of office are considered valid. Worton v.
                Shelbv County, 118 U.S. at 441-42: Germanv v.
                w,    222 S.W.2d at 176.    &9 generallv 39
                Tex. Jur. 2d Municinal Coroorations 5 144 and
                cases cited therein: 67 C.J.S. pfficers 55
-               269-70.
                   Here, as in Vick v. Citv of Waco, [614
                S.W.2d 861, Tex. Civ. App. - Waco 1981, writ
                ref'd n.r.e.1 the challenged officers were
                acting under color of authority. Thus, each
                was a de facto officer, and 'as such his acts
                are as binding as though he was an officer de
                jure.'2 Shriber v. Culberson, 31 S.W.2d 659,
                661 (Tex. Civ. App. - Waco 1930, no writ).
        Attorney General Opinion JM-874 (1988) at 2, 3.
             "Color of authority" as     applied to de facto officers,
        "is authority derived from       an election or appointment,


                 De jure is   defined in Black's     Law Dictionary   382
        (5th :d. 1979) as:
                     Descriptive of a condition in which there
                 has    been   total   compliance   with   all
                 requirements of law. Of right; legitimate:
                 lawful: by right and just title. In this
                 sense it is the contrary of de facto.




                                       -P. 5058
Honorable Bob Bullock - Page 4 (JM-989)




P.2d 901 (Wash. 1942): see   cases cited   at 7A   Words   and
Phrases 300.
     Before an officer can be regarded as a de facto
officer, there must be an office that he or she could hold
de jure. Citv of Dallas v. McDonald, 103 S.W.2d 725 (Tex.
1937). Section 75.002 of the Government Code authorizes the
assignment of a judge who has retired pursuant to section
75.001 of the Government Code to sit on any court of the
state of the same or lesser dignity as that on which the
person sat before retirement. Section 74.057 of the Govern-
ment Code provides that the chief justice may assign judges
(active or retired) of one or more administrative regions
for service in other administrative regions. The presiding
judge of an administrative region is authorized to assign
judges (active or retired) to hold special or regular terms
of court in any county within the administrative district
pursuant to the provisions of section 74.056 of the Govern-
ment Code.   A judge assigned under any of the foregoing
provisions "has all the powers of the judge of the~court to
which he is assigned."    Gov't Code 5 74.059. Clearly, a
judge  serving  in  another  court pursuant to assignment
occupies a position or office that he or she could hold de
                                                                 -_,
jure. While the assignment of a judge to sit in a court may
not in the strictest sense of the term constitute an
appointment to an office, no reason is perceived why the
rationale underlying the law relative to de facto officers
is not applicable.
     While we cannot envision every scenario which might
arise where there is a departure from statutory assignment
requirements, we believe that any judge (active, or retired
pursuant to section 75.001 of the Government Code) assigned
under the color of authority to a court existing under the
laws of this state is entitled to be compensated for
services rendered while sitting on that court.
     In Preslar the court further held that the 1987
amendment to section 74.053 of the Government Code did not
repeal subsection (b) which provides "[iIf a party to a
civil case files a timely objection to the assignment,
the judge is disqualified to hear the case." While your
scenario does not include this factor it is noted that in
the event of objection by either party the holding in
Preslar would dictate that the judge is disqualified and
would not be entitled to further compensation for services
rendered following such disqualification.




                             p. 5059
Honorable Bob Bullock - Page 5 (JM-989)




                      SUMMARY
            The Comptroller of Public Accounts may
       lawfully pay the salary of a visiting judge
       (active, or retired pursuant to       section
       75.001 of the Government Code) assigned under
       the color of authority to a court existing
       under the laws of this state for services
       rendered while sitting on the court to which
       he or she has served pursuant to such assign-
       ment. In the event either party to a civil
       case files an objection to the assignment,
       the judge is disqualified under       section
       74.053(b) of the Government Code and is not
       entitled to compensation for any services
       that may be rendered following disgualifica-
       tion.

                                   -Jzy$f&


                                             MATTOX
                                     Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General




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