In support of a motion for a rehearing of this application it is urged, that the court ought to assume jurisdiction and determine the case, for the reason, that although the term of office to which the applicant was elected has expired, if the judgment removing him remain unreversed it may be pleaded in bar to a suit for the recovery of the fees of the office. There is force in the contention as applied to a proper case. Since the cases cited in our former opinion were decided, this court has held that an officer de jure, who has been illegally ousted, may maintain an action for the recovery of the fees of the office. Beard v. Decatur, 64 Tex. 7. For that reason, it may be that the court should entertain an appeal from a judgment determining the right to an office after term has expired — provided that the judgment can be interposed as a bar to an action for the salary or fees appertaining to the place. We leave that an open question. Here the sole ground for the application for the writ of error is, that article 3401 of the Revised Statutes does not confer jurisdiction upon the District Court to declare the office of sheriff vacant when the sheriff elect has failed to give bond, as required by law. If that be so, the judgment of the District Court in this case is void, and the judgment of affirmance a nullity; and should be so declared in any tribunal in which they may be pleaded.
The motion for a rehearing is overruled.
Motion overruled.
Delivered February 28, 1895. *Page 567