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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