                               March 19,   1971


Hon. Robert S. Calvert                             Opinion      No. M-815
Comptroller    of Public Accounts
State Finance Building                             Re:    Legality   of payment of
Austin,   Texas                                           compensation    of Special
                                                          District   Judge.

Dear Mr. Calvertr

            You ask whether you may pay the salary        of the Honorable
Graham Bruce who was elected       and served as Special    Judge of the
163rd Judicial   District    Court, Orange County, during the disability
of the elected   judge,   from the time of his election       early in
August, 1970, through October,       1970.   You question   whether he
may be paid for his services       beginning  with the term of that
Court on the first    Monday in September,     1970, because he was
not reelected   to serve as Special      Judge at an election     during
that term.

           Our opinion   is that he may be paid for these services       In
the usual statutory    manner and at the statutory     rate of pay for
the reason that he was at least    a de facto   judge;    we do not pass
upon whether he was a de Jure judge.

            Your question     arises  because    of the provisions      of the
following   two Articles     of Vernon's   Civil   Statutes:    Article    1887
providing   for election     of Special   District   Judges and of Article
199, relating      to the terms of the 163rd District        Court of Orange
County.    Article    1887 reads as follows:

              "Should the judge of a district      court on the
      first    or any future day of a term, fall       or reruse
      to hold the court,     the practicing    lawyers of the
      court present may elect-from       among their number a
      special    judge who shall hold the court and proceed
      with the business     thereof."     (Emphasis added.)

Article 199, in Its provisions          relevant     to   the    terms   of   the
163rd Judicial District  Court         reads:
              II
                      . .(C)  The terms of the 163rd District
      Court        shall begin on the first  Monday in January,




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Hon. Robert     Calvert,   page   2        (M-815)



      May and September of each year, respectively,     and
      each term of said Court  shall continue  until   the
      convening of the next succeeding   term.   . . .II
      (Emphasis added. )

          Inasmuch as your office    is concerned           with the legality
of payment to this Special  District   Judge for           his services,   we
address ourselves  only to that question.

            In Snow v. State,       114 s.w.2d     a98 (Tex.Crim.      1937),    it
was held that a judge holding          office    under color    of title    by appolnt-
ment and discharging      the duties      of the office,     although    ineligible
to serve,   was a de facto      judge and his title       to the office       could
not be successfully      challenged      except   in a direct    Droceedinn.
This case is distinguishable         from the holding       in Bates v. State,
248 S.W.2d 947 (Tex.Crim.         1952),    and Davis V. State,      2515-6$26      891
(Tex.Crim.   1952), wherein a direct          attackwassuccessfully’m~de
upon the authority     of a special       judge to sit in the case by a
party litigant    during the course of the proceeding.

             Under the facts   presented,     the special   judge who was
elected   to serve continued    to serve as the special         judge under
color   of authority    under such circumstances      of reputation      or
acquiescence    as were calculated      to induce people,     without    Inquiry,
to submit to or Invoke his action,         supposing   him to be the officer
he assumed to be.       In the absence of the issue having been challenged
by a party litigant,      the authorities     hold that he may be recognized
as a de facto    judge.   46 Am.Jur.2d    263, Judges,    Section    243.

            We therefore   regard the special       judge in question    as at
least a de facto     judge during the subsequent        term of court when
he continued    to act for the regular     judge who remained incapacitated.
The compensation     of de facto  officers    is discussed     in 47 Texas
Jurisprudence    2d 324, Public Officers,       Section    263 which reads,
in part,   as follows:
             11
              . . . in the absence of a de jure claimants,
      a de facto   officer Is, in a proper case,  entitled
      to compensation,,for  services rendered  by him and
      accepted;   . . .

              We thus   advise that     the request for payment tendered by
the special     judge   in question     should be paid by the State for services
rendered.




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Ron.   Robert   Calvert,     page   3          (M-815)



                             SUMMARY

             A special    district     judge who Is elected
       during one term of court and who continues            to
       serve (without     objection     by any one) during the
       next term of court without being reelected            by
       the members of the Bar should be paid for all
       his ser~vices rendered       In accordance    with Article
       6021, Vernon's     Civil    Statutes,  provided   there Is
       no conflict    between the special       judge and a de
       jure claimant.

                                        Very    truly     yours,

                                        CRAWFORDC. MARTIN
                                        Attorney General of Texas



                                        BY
                                             First      Assistant

Prepared    by Melvin      E. Corley
Assistant    Attorney      General

APPROVRD:
OPINION COMMITTEE

Kerns Taylor,   Chairman
W. E. Allen,   Co-Chairman
John Reeves
Arthur Sandlln
Roland Allen
Bob Lattimore

MEADEF. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant




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