                 EATTORNEY          GENERAL
                       OFTEXAS




                       January 10, 1962

icnorable Henry Wade          Opinion No. WW-1238
District Attorney
Records Building              Re:   Waiver of salary of
Dallas 2, Texas                     District Clerk when
                                    called into the Military
Dear Mr. Wade:                      Service.

         You have requested an opinion on these questions:
          1. While serving in the Armed Forces of the United
States, and if he elects to do so, may the District Clerk of
Dallas County, Texas, legally waive the salary to which he is
entitled as District Clerk?
          2. Would such a waiver if executed, effectively
bar later assertion of a claim for the salary whic.hmight have
been due in the absence of such waiver?
          In the view which we take, these questions may be
answered together. First, what is a waiver? Black's Law
Dictionary says:
          "Waiver is the intentional or voluntary re-
     linquishment of a known right."
          This seems to be the standard definition. Relinquish
means "to withdraw from; to abandon; to give up, to renounce
a claim to;" Webster's New Collegiate Dictionary. When a
thing is waived                                   a genuine
bona fide waiver there are no strings attached. A waiver
denotes finality.
          The intent not to receive a salary while one is
temporarily at other employment, such as serving in the army,
but with the intent to come back later and claim the back pay,
is not a waiver at all; it is merely a deferment in receiving
pay.
          “Waiver, strictly speaking, is essentially
     unilateral in character; . . . it results as a
     legal consequence from some act or conduct of the
     party against whom it operates; and no act of the
     party in whose favor it is made is necessary to
     complete it."
Honorable Henry Wade, page 2 (WW-1238)

                  Keel v. Kilgore Transfer & Storage, 238 S.W.2d
738,   741       (err.ref.)
                 We quote from the syllabus in the following case:
            'Waiver is essentlally unilateral resulting
       as a legal consequence from some conduct of party
       against whom it operates, and no act of party
       against whom it operates and no act of party in
       whose favor It is made is necessary to complete
       it.
            "Waiver need not be founded upon a new
       agreement supported by consideration or based
       upon estoppel."
       Reserve Life Ins. Co. v. J. B. Martin, 312 S.W.2d 321
       '(Civ.App.1936, error ref., n.r.e.).
            "Waiver implies abandonment and not reser-
       vation for Future use and in suit for injunction
       a 'waiver' or failure to seek pecuniary relief
       cannot be construed as a lawful segregation for
       future litigation of the recovery so waived."
       Words & Phrases, vol. 44 p. 520,      citing 269 Fed. 630,
             .

     Corpus Juris Secundum says that a waiver is "the volun-
tary abandonment or surrender by a capable person of a right
known by him to exist with the intent that such right shall
be surrendered and such person deprived of its benefit."
       92 C.J.S.,pages 1047, 1048.
                  We further quote from the same text:
            "It involves the concept of an intention
       entertained by the holder of some right to
       abandon or relinquish instead of insisting
       upon the right and implies abandonment, not
       segregation for future use." (Emphasis added)
       92 c.J.s.,      page   1049.
          We are not unmindful of the line of authorities
to the effect that a public official may not legally make
an agreement to accept a smaller salary than that provided
by law. Such an agreement is said to be against public
policy and void.
Honorable Henry Wade, Page 3 (W~-l238)

           In Crutcher v. Johnson County, 79 S.W.2d 932 (Civ.
APP. 1935, Judge Alexander set forth the basic reasoning
behind such rule by stating:
          "We are also of the opinion that the promise
     on the part of the plaintiff to serve as county
     commissioner for less than the salary fixed by
     the Legislature was contrary to public policy,
     and void. It is to be presumed that the Legisla-
     ture, in fixing the salary to be paid to those
     who filled the various public offices of this
     state, did so with due regard to the nature of
     the service and the character of the ?tndividual
     needed to fill the office, and the type of offi-
     cer that could be obtained for the salary offered.
     If a candidate for public office is permitted to
     obtain appointment or election by a promise to
     serve for less than the amount fixed by the Leg-
     islature, or if, after having obtained appoint-
     ment or election, he is permitted to more securely
     entrench himself in office by such a promise and
     thus bring about his re-appointment or re-election,
     such practice will ultimately result in the virtual
     auctioning off of official positions to the lowest
     bidder, and the obtaining of the least efficient
     employees to fill the positions. Those capable
     of earning the salary fixed by the statute, and
     of the type contemplated by the Legislature, will
     be eliminated by such competitive bidding, so
     that none but the inefficient will be available
     for selection to fill the offices. Official
     morality and public policy alike prohibit the
     undermining of the public servic,eby permitting
     officers to thus make merchandise of their offi-
     cial services. Such promises by public offic,ials
     have been condemned as contrary to public policy,
     not only by the Supreme Court of this state, but
     by the federal courts, and the Courts of Appeals
     of almost every other state in the Union. . . ."
          However, we are of the opinion that the fact situ-
ation herein presented is distinct and distinguished from the
holding in Crutcher v. Johnson County, supra.
          A District Clerk who is ordered into the military
service must by necessity be absent from his official duties
as District Clerk, and is, therefore, unable to "serve" in
his official capacity. Although his absence does not create
a vacancy in such office, such absence does create a situation
which prevents him from performing the duties of his office.~
 Honorable Henry Wade, page 4 (WW-1238)

          We fail to see that a waiver of a salary for ser-
vices not performed due to a military absence would "be
injurious to the public or against the public good" or that
such waiver under the presented facts would have a "tendency
to be injurious to the public."
          There is nothing in the Crutcher case nor in the
other cases of similar holding from which we could conclude
that the attempt by your District Clerk to waive his salary
under the conditions which you mention would be against public
P-jr,   nor do we find anything else which would prevent such
a waiver from being perfectly lawful and binding.
          There is a line of authority to the effect that
sometimes an ostensible waiver is really onls an agreement
to waive. Roberts v. Griffith, 207 S.W:2d 443 (Civ.App. 1948,
error ref.) 92 C.J.S., p. 1055.   The agreement is held to be
an executory contract, requiring a consideration to support
it just like any other contract or there must be something to
create an estoppel.
          To eliminate all doubt as to the finality of the
intention of the District Clerk to relinquish his salary
without "strings" and without any Intention to seek recovery
thereof upon his return from the military service, it is
suggested that the Clerk execute a commitment waiving such
salary.
          Under a commitment to the Commissioners Court it
would seem to make little difference whether the arrangement
be regarded as a waiver of salary or as an executory agree-
ment to waive. In speaking of the latter alternative the
following authority appropriately says:
          "Where there is no consideration, a promise
     or permission . . . if supported by action In
     reliance thereon, may excuse performance in the
     future of a condition or an obligation not due
     at the time."   16 C.J.S., page 1056.

          The following case is In point:
          "Where insurer under an automobile liability
     policy waived its rights to defend an action
     against insured, the right was lost forever and
     could not be reclaimed without the consent of
     insured who was thereby caused to obligate him-
     self for an attorney's fee to an attorney re-
     tained by him and otherwise change his position."
Y   -




        Honorable Henry Wade, page 5 (~~-1238)

                  Witt v. Universal Auto Ins. Co., 1.16 S.W.2d 1095
        (Civ.App. 1938, error dism.).
                  In Attorney General's Opinion No. O-5102 (1943)
        it was held that it was solely a matter of personal propriety
        for a District Attorney entering the military service to de-
        termine whether he wished to hold office and draw his salary
        a:-.?
            that he could legally do both if he wanted to.
                  However, our Supreme Court has specifically held
        that the salary may be waived. In Cramer v. Sheppard, 140
        Tex. 271, 167 S.W.2d 147 (1942), the Supreme Court had before
        it a case concerning the entrance of a District Judge into
        military service. The Court stated:
                  II
                   . . . Judge Dixon did not announce his
             resignation as District Judge at the time he
             entered the Army, nor did he publicly renounce
             his claim to the office, but he did specifically
             waive the compensation allowed b 1     h'l
             ing in the armed forces. . . .'I' (KpEaZ     ZIZ)
                  Thus the Supreme Court has set at rest the question
        of whether public officials upon entering the military service
        may effect a waiver of salary. Therefore, the District Clerk's
        action, as outlined above, would be a "waiver" and not merely
        an executory agreement for a waiver. To sum up the legal ef-
        fect of a waiver we quote from the following authority:
                 "It is generally recognized that if a person
            in possession of any right waives that right he
            will be precluded thereafter from asserting it
            or from claiming anything by reason of it. That
            is, once a right is waived It Is rrnn?tnrever,
            and It cannot hr: reclaimed or recaptured, and
            the waiver cannot be retracted, recalled or
            expunged." 92 C.J.S., page 1069.
                  We therefore answer both of your questions in the
        affirmative.
                                SUMMARY

                 While serving in the Armed Forces of the
            United States, if he elects to do so, the District
            Clerk of Dallas County may legally waive his salary.
Honorable Henry Wade, page 6 (WW-1238)

    Such a waiver, if executed, would effectively
    bar a later assertion of a claim for the salary
    which might have been due In the absence of such
    waiver.
                             Yours very truly,
                             WILL WILSON
                             Attorney General of Texas




WRS:ds


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Ben Harrison
L. P. Lollar
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
