               TWEA~TORNEYGENERAL
                         OF TEXAS
                     Auwrx~. T-   78711



                                 February     13, 1974


The Honorable Ted Butler                       Opinion No.   H-   227
Criminal District Attorney
Bexar County                                   Re: Whether Justice of the Peace,
San Antonio,  Texas  78204                     convicted of felony and suspended
                                               pending appeal, under Article 5969,
                                               is entitled to emoluments  of office
                                               during appeal.

Dear Mr.   Butler:

       Your letter requesting our opinion advises that a Justice of the Peace has
been found guilty of a felony involving official misconduct and was “removed”
from office on that date by the district judge presiding over the trial. The
conviction is now on appeal.

      Essentially,   you ask two questions:

             (1) Is a Justice of the Peace,    convicted of a felony
             and “removed”    from, office pending appeal of said
             convictions pursuant to Article 5969, V. T. C. S. ,
             entitled to the emoluments     of office while the appeal
             is pending?

            (2) #I[Slhould the criminal case be reversed   upon
             appeal, would the county then be obligated to pay
             the withheld salary to the Justice of the Peace?”

        The office of Justice of the Peace is a constitutional  one with a constitu-
tionally prescribed   term of four years.    Article  5, $18, Constitution of Texas.
As such its holder may be removed        from office only in accordance   with consti-
tutional provisions.    Attorney General Opinions H-72 (1973), H-220 (1974).
Article   5, Section 24 of the Constitution provides that:




                                     p. 1059
The Honorable         Ted Butler,     page 2    (H-227)




                I,
                 .  .   [ Jlustices of the peace.   . . and other county
                officers,    may be removed by Judges of the District
                Courts for incompetency,      official misconduct,   habit-
                ual drunkenness,     or other causes defined by law,
                upon the cause therefor being set forth in writing and
                the finding of its truth by a jury. ”

      The applicable          statutes   are Articles      5968 and 5969,     V. T. C. S.

      Article        5968,   V. T. C. S.,   provides    in part:

                          “All convictions by a petit jury of any county
                officers for any felony.  . . shall work an immediate
                removal from office of the officer so convicted.    Each
                such judgment of conviction shall embody within it an
                order removing such officer. ”

       The “immediate   removal” of Article                5968,   however,    is qualified   by
Article 5969, V. T. C. S., which provides:

                          “When an appeal is taken from such judgment
                by the officer removed,   such appeal shall have the effect
                of superseding   such judgment,  unless the court rendering
                such judgment shall deem it to the public interest to
                suspend such officer from the office pending such appeal;
                and in that case the court shall proceed as in other cases
                of the suspension of officers from office as provided
                herein. ”

         Pursuant to Article 5969, Texas Courts of Civil Appeals have held in
 several instances that the appeal of a conviction effectuates   a suspension of
 removal.     In Leonard v. Spkkr, 48 S. W. 2d 474 (Tex. Civ. App. Galveston
1932 err. dism. ), the court held that, pending the appeal, the convicted      officer
is permitted    to continue to perform the duties of his office unless the convicting
 court makes the finding of public interest required by Article 5969.      The Court
 stated:




                                               p.   1060
The Honorable    Ted Butler,   page 3    (H-227)




                        “It is evident that the court rendering the
             judgment of suspension of the convicted officer pending
             the appeal is authorized to do so by the prov,isions of
             article 5969 only. and then only for the protection of
             the public interest against the menace of a convict.ed
             officer in performance     of the duties of a public office.
             It is also evident, we think, that such was the purpose
             and intent of the Legislature    in the enactment of Article
             5969, conferring upon a court power to suspend the
             officer referred to in said article. ” (48 S. W. 2d at
             476)

Similarly,    the Court of Civil Appeals held in Garcia v.   Tobin, 307 S. W. 2d
836 (Tex. Civ. App.,     San Antonio,   1957) affm’d,  316
                                                        S.   W. 2d 396, t~hat an
officer,   convicted in federal court of a felony, who had   appealed his conviction,
was not rendered ineligible to hold public office pending     the outcome of the
appeal.

        Unless an appealing officer. has been suspended in accordance      with Article
 5969, he is entitled to the emoluments     of office. “To entitle a person to recover
 the emoluments    of an office, he should show that he is an officer de jure, that
the office has been legally created and is in existence,   and that he has been
legally placed therein and has a legal right thereto. ” 47 Tex. Jur. 2d, Public
 Officers,  § 163, p. 207.    And see Attorney General Opinion WW-1064 (1961).

        Pursuant to Article 5969, conviction of a felony, without more,       does not
 remove the legal right of an officer to his office and its emoluments      if an appeal
 has been taken and if the additional steps have not been t.aken by the court to
 suspend such officer pending his appeal.      It makes no difference that he has
 failed to perform the duties of office since his conviction.. because il[t]he salary
 or emoluments    are incident to the title to the office and not to its occupation or
the performance    of official duties, ” 47 Tex. Jur. 2d, Public Officers,      $163,
 p. 208; Beard v. Decatur,     64 Tex. 7 (1885); City of Houston v. Estes,     79 S. W.
 848 (Tex. Civ. App. 1904, error ref’d).

        The statutes are silent as to the answer to your second question which
 concerns automatic removal upon conviction of a felony and a suspension,from




                                        po 1061
The Honorable    Ted Butler,   page 4        (H-227)




office under Article 5969.    However provision   is made in Article 5982-b V. T.
C: S. for the compensation   of an officer, removed by judcial proceeding under
Article  5970 and later found on appeal to be entitled to his office.

       In our opinion, if the conviction is reversed     on appeal--having  the effect
of no conviction at all--the  officer removed automatically      by the conviction in
the first place and later reinstated when the conviction was set aside,        should
be entitled to the emoluments     of his office as if he had never been removed,
unless during the intervening period something else had occurred to deny him
the right thereto.

                                        SUMMARY

                        A Justice of the Peace,   convicted of a felony
             involving official misconduct,    who appeals the conviction.
             is entitled to the emoluments    of office pending the appeal,
             unless the convicting court finds that it is in the best
             interest of the public to suspend him, in which case he
             gets nothing.:.;Inthe  latter situation,  if the conviction of             ~: c
             the Justice ,oftbe. Peace is set aside on appeal, he will                  j :.~
             be entitled to be compensated     for the period of suspension
             assuming there is no other reason why he should not be
             paid.

                                                       Yours   very truly,




                                                       Attorney   General    of Texas




Opinion   Committee




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