Untitled Texas Attorney General Opinion

- -- - THEAITORNEY GENERAL OFTEXAS Honorable C. H. Cavness State Auditor Austin, Texas Dear Mr. Cavness: Opinion No. O-4862 Re: Qualifying acts required of State, district, countg'and precinct officers prerequi- site to the exercise of func- tions and right to fees or compensation therefor. Your letter of September 16, 1942, submitting the following questions has been given our careful consideration: "1 o Apart from any other qualifying acts re- quired by law, may any officer legally enter upon the duties of office before taking the official oath specified by law as a qualifying act for that office? "2 " In the event an officer be duly elected or appointed to an office for which the law speci- fies more than one qualifying act, each being a dlst1nctlg separate performance, is it an absolute requirement that all such acts be entirely perform- ed before such officer may enter upon the duties of the office? "3 . Is any~officer entitled to receive any fees or compensation whatsoever for the perform- ance of official services by virtue of having com- plied with one or more of the statutory provisibns applying to qualification for his office, but who has failed or refused to perform one, or more than one, other qualifying act specified by the Constl- tution or Statutes of the State? "4. In the event an elected or appointed of- ficer has failed or refused to qualify in any one or more particulars demanded as a condition prece- dent to entering upon the duties and receiving the fees or compensation of office, although the officer assumed all rights and prerogatives of the office -- - Honorable C. H. Cavness, page 2 o-4862 and continuously exercised them for a long period of time the same In all respects as if fully qual- ified to do so, what corrective measures are re- quired and upon whom devolves the duty of institut- ing the corrective procedure? “5 . In connection with Question 4, should such an officer be found to have been in posses- sion of the office for an unreasonably long period of time though never fully legally qualified ~to begin upon the duties of It, does the law require that he be forthwith removed by due process and he or his successor validly installed by election or appointment, or may he be legally permitted to perform the unfulfilled requirements of qualifica- tion and continue in office with no regard or re- sponsibility for performance of official acts and collection of fees and compensation therefor dur- ing the period of time he may be consldered to have been not qualified and in illegal possession of the office? “6. If an officer shall have failed or re- fused to fully perform the qualifying acts re- quired by law to hold his offlce, and to have re- ceived fees, compensation, or other valuable con- siderations to which it may be held he was not therefore legally entitled, Is any process for the recovery of same provided by law and, if so, upon whom devolves the duty of Instituting such action?" Answering Question No. 1: As submitted, it is dif- flcult, if not impossible, to answer. In order for an officer to legally enter upon his duties, he should, and strictly speaking, perhaps must, take the official oath, and If re- quired, give a bond. Our courts have uniformly held, however, that where a person, who under a color of title, exercises the functions and performs the tasks of an officer, he is in law a de facto officer, although he may not be a de jure officer. See State v. Jordan, 28 S. W. (2) 921. Question No. 2: We think what we have said rela- tive to Question No. 1 above will answer your Question No. 2. , If there is any particular officer you destre to inquire I about, or any particular state of facts, we would be glad to give you an opinion based on the specific data. QuestIon No. 3: In response to your Question 3, Honorable C. H. Cavness, page 3 O-4862 we call your attention to Article 16 of the Revised Civil Statutes, which requires each officer In this State, whether elected or appointed, before enterlng upon his duties, to take and subscribe to the oath of office prescribed by Article XVI, Section 1, of the Constitution. Article IV, Section20, of our State Constitution provides that all commissions shall be signed by the Gover- nor, and attested by the Secretary of State. Article 3882, of the Revised Civil Statutes, pro- vides: "NO official who fails or refuses to take out a commission shall be entitled to collect or receive either from the State or from indivi- duals any money as fees of office or compensa- tion for official services. Neither the Comptrol- ler, Commissioners' Court, County Auditor, nor any other person, shall approve or pay any claim on account in favor of any such officer who has so failed or refused." Since the Constitution of Texas provides that only the Governor of Texas can issue commissions to the elected officers, and that same must be attested by the Secretary of State, and since Article.3882 of the Revised Civil Statutes prohibits an officer from receiving any pay, who falls or refuses to take out his commission, you are advised that no officer who has thus failed to obtain his commission is en- titled to receive or be paid any compensation. 'In view of the fact that before a commission can be issued the qualifying officer must submit sufficient proof to the Governor that he has been either elected or appointed, has executed the bond, and performed such other acts as are necessary to entitle him to the commission, we deem it un- necessary to speculate on any other condition unless some specific facts are submitted. Your Questions Nos. 4, 5 and 6 present practically the same matter, and as such, we could not give an opinion that will apply to all conditions and circumstances that might arise. If it becomes necessary to have corrective legisla- tion, that duty of course would fall upon the Legislature. If an elective or appointive officer fails to com- ply with the law, and does not qualify, his office in some Honorable C. H. Cavness, page 4 o-4862 cases may be declared vacant by the commissioners' court, or he may be removed by quo warrant0 proceedings. If he has been paid fees that he was not entitled to under the law, either as a de facto or a de jure officer. suit could be brought to recover same. If there are any such conditions, it would be best for you to submit the facts surrounding each case, and the Attorney General could then determine the proper course to pursue. Articles 6887 and 1706 of the Revised Statutes pro- vide that where a sheriff and/or a county treasurer falls to qualify within twenty days, his office may be deemed vacant. Article 1928, 1937 and 2340 of the Revised Clvll Statutes provide that the county judge, county cl:erk,and members of the commissioners' court, before they enter upon their duties, shall take the oath of office and give bond. Article XVI, Section 17, of the State Constitution provides that all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified. This provision has been construed by our courts. In Robinson v. State, 28 S.W. 567, it appears that Robinson was elected sheriff of Hartley County for a second term, but failed ,toqualify as such. After he had served ap- proximately one year of his second term, the County Attorney instituted a quo warrant0 proceeding against him In the Dis- trict Court to oust him from said office. Among other de- fenses, the sheriff claimed that since Section 17, of Article XVI, of the Constitution provides "that all officers within this State shall continue to perform the duties of their of- fices until their successors shall be duly qualified", he had a right to hold the office under his former election. In overruling this contention, the court used this language In the last paragraph of its opinion: '* * * To sustain this position would be to hold that there would be no necessity for an officer to qualify but one time, as long as he can be successful in being elected to succeed himself. We think his election the second time would, upon his failing to qualify thereunder, create such a vacancy in the office as would authorize the commissioners' court to appoint another to fill it;" In Goehenour v. Anderson, 81 S.W. 104, the court, Honorable C. H. Cavness, page 5 o-4862 In passing upon the question as to whether there was a vacancy in the county -judge'soffice, by reason of his having failed to gLve the required bond, used this language: ' l * * If the commissioners really considered and rejected as Insufficient the bonds tendered by appellant, (county judge) and he failed to tender other and sufficient bonds within the time prescribed by law, a vacancy was created in the office of county judge, which they (the Commissioners) were author- lzed to fill." In Flatan v. State, 56 Tex. 93, the court used this language: "Under the laws of this state, it is necessary for a person who has been elected to the office of sheriff to take the oath of office and to execute the bonds prescribed by law. After a person elected receives his certificate of election, which is all the notice to which he is entitled, it Is his right and duty to qualify; wtthout quallflcation he has no right to the office, and it is Incumbent upon such person so to qualify without notification so to do from the county commissioners' court, and without notice that the office will be declared vacant, and filled if he neglects or refuses to qualify." In State v. Box, 78 S.W. 982, the court, in holding that the sheriff, who had been elected for a second term, was required to give a new bond. in order to keep the Commisslon- ers ' court from declaring the office vacant, used this language: "As to appellee's claim that he was entltled to'hold over, notwithstanding his failure to qualify, because he had already taken the oath of office and given bond as appointee of the commissioners' court, we need only cite the opinion of Justice Head in Robinson v. State, 28 S.W. 566, holding to the con- trary." We trust the above sufficiently answers your questions. Honorable C. R. Cavness, page 6 O-4862 Very truly yours ATTORNEY GENWAL OF TEXAS By s/Geo.W. Barcus Geo.W. Bareus Assistant GWB:MFl:wc APPROVED OCT 9, 1942 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion Committee By s/RWF Chairman