-
OFFlCEOFTHEAI-fORNEY GENERALOFkCAS
AUSTIN
rranorabluGeoI Ii. Sheppard
comptroller of Pltb1l.aAccounts
Austin, Texas
Dear &r. Sheppardi Oplnian No. o-48
H8l Authorit
Your letter of Ootob requesting's legal
o@.ion of this department u aptioned subjeat
is as follous~
Y. Crcuuar,Spe
for the OStb J
dered to the
ers of the.Bar of
1. 9. Lirsmlft$t
ham3
0 legal.$ty of the
Y. Cramer as Speoial Judge
1 District, and have f&led
nt l statelaentat faots to-
int of law he has raised in
e authority of tho @embera of
o elect a Special Judge to a
&am submitting the entire file here-
;:i?'%i will thank you to advise thle depart-
ment Whether ~0 are authorized to pay the cl8im
of William Ai. Cramer as pswsented.*
Seotion I2 of Article XVI of the Constitutloo Is
as follows:
'.
Honorable Goo. D. Sheppard - page 2
"Do member of Congress, nor person hold-
ing or exercising any offioe of profit or
trust, under the Unitsd States, or elther~of
them, or under any foreign paver, shall be
eligible as a member of the Legislature, or
hold or exercise any Office of profit or
trust under this Stet8.'
In State Y. DeGress, 53 70x. !Y&, it was held
that an officer of tho United statas on tho retired list
oonstitutes a part of the Army of the United States, and
that as such offioer, he was forbiddan to hold at the same
time the office of hayor of the City of Austin. State Y.
DeGress, 53 Tex. 357, In -SXJWt.8 Dailey, 248 S. V. 91,
the court of Criminal Appeals emphasized this by exoopting
from the rule the caee of a.member of tho National Ouard
who had not been called in+ actunl service of tho United
states, the office being thPt of District Judge.
IT112
rule is further aacentuated in the case of
Lowe Y. Stata, *.-heroin
the Courtof Criminal Aypsals uf-
ferontiated the status of a &tional Guardsman and Ms-
triot Judge. i'haDistrict Judge being absent, the Bar
cleated a Special Judge, and the r0gular &zdgz thereafter
rent Into the active service, and the court hold that the
Special J&g0 had &Wer t6 continue the term already be-
gun* Lou0 'I.state, 201 s.'V. 956.
It is uell settled that xhere one aocepts an in-
compatible office with tho one he holds he thereby auto-
matioally as matter of law raoatos the first office. State
Y. DeGress, suprat Love Y. 'State, supra~ Diencourt Y. Parker,
27 Tax. 655; atate Y. tiritierhoff,60 Tex, 45, 17 5. w. 1093
Stat8 Y. Valentine, 195 5. ,q* 1000; Druitt 1. Glen Dose In-
dopondent Sohool Dist. tie, 1, 34 S. x. (2) 1004; 3,OOA.L.R.
11w; deal Y. Hnilroad Cometssion of' %'eu;rs,107 9. W. (2)
439.
Under the faots f5hGr;n
by the instruments aooompany-
ing your letter, Judge Diehard J. Dixon, the regularly eleot-
ed District Judge for the OSth Judicial Mstriet, as a rolun-
toer was temporarily nppGinted and coox&ssioned as a LIaJorin
the Arn.qcf tho United Statos, suc.hcommlasion to continue in
force durpng the pleasure of the Frasidcnt of tbe United
States for the tiuo bOing, and for the duration of the pree-
kionorablo(ioo.n. Shiqqmmi - Pws 3
ent esiegvncy and e&x months tharooftar, ualoee 6oom1
teminutod, and ha* aoeeptod such nppolIltAwnt,aal ho8
aotuall~ boon engaged in the oerviae ns such Aisjor ug
until the present time. mr. Cramr was elootsd by the
Lar of Dallas County, after such apyointmant a& quali-
ficrrtion OS Judge Dixon.
Js shorn by tha rwi.ous instruEi?ntsaeoolripaq-
ing your +.etter, Judga Dixon dims not oou@ritla.h any of
tha sraoptiona oontaioed in Um Constitutf.aa, an& there-
fore not ritbin t&s 08Ls.SOf Carpontsr T. Smppard‘ 146
s. u. (2) 652. Judga Dixon has, thorefor3, ?racated*&s
offloe of D&strict Judgs.
Yauoanclostn tlro0PMcs of Julga 0P the i?&etibt
Courts are rsquirsd to bs Cillad by the Covarnor. soo. 28,
Art. v, of the Constitutf6n.
.SnU$tion 31).O-1784 th%isEJ~artDer&,rUl:M,
n~hat no rmwision has bs3n made i'i:? Um elostion of a
Special &dg3, or tlm ussl@mrtrltof a Ju&,neBOBI another
district tithin th3 sdminLetrativ* dhtrlct, f ollcruing
tho death Of tha r0~3lar judge, and prior to the Pilling
oi 3~s rzomcy oocasimed by Lb death of the District
Jwlga bJ ap9ointaent made by ths tiwsrnor.r sno, Leonard
V. Sqour, 4s 5. U. (3) 474; Clo+er Y. dlbrooht, 173 S.V&O(.
“It shall bb unlacrPu1Tar any offiaor or
court or this Stats, or of any zmniclpal (XlrLs-
ion theroof, to allou, audit, gay or order to
bo polil,tha alaim of my porsoa for rralsq,
compansation, ieJs, purqulsitos, sntclmonts or
sorvfcas, as an oiiicsr of tha Strto or of any
mmiciyal division theraof, axcapf to auoh per-
son as has bozn duly alactad such officer by
the qwliriad rotors of this State, and irhose
alection has been asoertained and ccrtlf%ed or
dccl~ad in the anrrnner required by lw, or who
has bean appointed suoh ofricer by the lsrful
8ppointing 9cmr under the Constitution and
lP\rlsor this St&o, or who has bow odjudsed
untitled thereto by a State court of competent
jurisdiction, and has qualified as such off"tcor
in aoeordonoo with law. Any person not so eloot-
od, appointed and qualified shall not be entitled
to roosivo pay for 00rvic3s a~ such offioer, or
to erarcise the powers or jurisdiotion of such
officm. Tlr3official aota of any peraoa cl&~-
Honorable 000. ii. Sheppard - page 4
* 8 right to exercise such power or jutis-
alotion oontrary to the provisions of this
law shall bo void.*
If it be contended that Yr. Cramer is entitled to
compensation as *Speoial DistricrtJudge*,,the answer is clear
that the saw does not provide for the off'j$eoi *Special Dis-
trict Judge*, where the offiae of *Metriot Judge' is vacant,
Sinoe thore is no office of lSpecial District JudgtP provided
for undar the oiFCUmatam3s, it Is obvious that Er. Cr.aamer
can not be paid companeatlon authorized by law for .$peaial
District JudgozP -- for tha oompensation provided 1s foPthe
ocoupants of the de fur0 offiaes of *Special District Judge*.
Pou are thwuforo respectfully advised that there
exists no authority for paying Spwial Judge Cramr for his
sarvlcos.
This opinion, of course, In noaisd passes upon the
Question of the validity of Judge Cramvr*s acts, decrees and
tis.3
likza,since such quostion is not involved in your inquiry.
very truly yours
ATTORXdX U2NSRAL OF T2US
.I. I
BY
O&e ‘Spaosr
Assistant