The Honorable Gus L. Lamer 

County Attorney 

Walker County 

P. 0. Box 425 

Huntsville, Texas 77340 

Dear Mr. Lamer: 

Opinion No. H- 161 

IL?: May a Justice of the 

Peace receive salary 

for a period during 

which he was holding 

over awaiting appointment of his successor? 

Your request for an opinion asks whether the county commissioners 

court may legally pay a justice of the peace his salary for the period he 

was holding over awaiting appointment of his successor. 

You provide the facts in your request as follows: An individual 

elected justice of the peace for a four year term in November ,197O was 

duly qualified and assumed the duties of such office on January 1, 1971. 

On February 7, 1972, he filed as a candidate for the office of tax assessor 

and collector, and was defeated on May 6, 1972. At all relevant times up 

to the appointment of his successor on February 12, 1973, this man continued 

to perform the duties of justice of the peace. He was paid his salary until 

May 31, 1972, at which time the County Attorney advised the County Clerk 

not to issue any further warrants for the payment of his salary in view of 

Article 16, $65, of the Texas Constitution. He received no further payment 

of salary from that date until his reappointment as successor on February 12, 

1973. 

Article 16, $65, of the Texas Constitution provides in part: 

“Provided, however, if any of the officers named 

herein [including justices of the peace] shall announce 

their candidacy, or shall in fact become a candidate, in 

any General, Special or Primary Election, for any office 

of profit or trust under the laws of this State or the United 

p. 746 
The Honorable Gus L. Lanier, page 2 (H-161) 

States other than the office then held, at any time 

when the unexpired term of the office then held shall 

exceed one (1) year, such announcement of candidacy 

shall constitute an automatic resignation of the office 

then held, and the vacancy thereby created shall be 

filled pursuant to law in the same manner as other 

vacancies for such office are filled. (emphasis added) 

Under this provision of the Texas Constitution, wl sn the individual filed as 

a candidate for the office of tax assessor and collector on February 7,1972, 

he automatically resigned as justice of the peace. 

Article 16, 517, of the Texas Constitution states: 

“All officers within this State shall continue to 

perform the duties of their offices until their successors 

shall be duly qualified. ” 

The recognized purpose of this provision is to insure against vacancies in 

office and a consequent cessation of the functions of government. Section 

17 provides for officers to hold over in the performance of the duties of 

office even after resignation until a successor has been elected or appointed 

and has qualified. The officer who has resigned retains his position, in 

spite of his resignation, as a de jure officer. Plains Common Consolidated 

School Dist. No. 1 of Yoakum County v. Hayhurst, 122 S. W. 2d 322 (Tex. Civ. 

App. 3 Amarillo, 1938, no writ): Keen v. Featherston, 69 S. W. 983 (Tex. Civ. 

APP. 8 1902. err. ref). See also Attorney General Opinions M-659 (1970); C-43 

(1963) and WW-1253 (1962). If he shows himself to be a de jure officer, he 

will he permitted to recover the compensation incident to the office. Jones 

v. City of Uvalde, 79 S. W. 2d 341 (Tex. Civ.App.. San Antonio, 1935, err. 

ref.); City of San Antonio Y. Coultress, 169 S. W. 917 (Tex. Civ.App., San 

Antonio, 1914, dis’m. w. o. j.). However, if, prior to qualification of his 

successor he should accept an incompatible office, he will not remain a de 

jure officer. Compare Pruitt v. Glen Rose Independent School Dist. No. 1, 

84 S. W. 2d 1004 (Tex. 1935); ~Lowe v. State, 201 S. W. 986 (Tex. Crim. 1918). 

It is our opinion therefore that the justice of the peace continued to hold 

over as a de jure officer following his aut.omatic resignation, under Article 16, 

p. 747 
The Honorable Gus L. Lanier, page 3 (H-161) 

§ 65, Texas Constitution, and is therefore entitled to compensation for this 

period. 

SUMMARY 

A de jure justice of the peace may receive a 

salary for the period during which he was holding 

over awaiting appointment of his successor. 

Very truly yours, 

P C’F’Y L. HILL 

Attorney General of Texas 

AP,,p;lED: 

\ 

!t ‘: ’ 

I 

<zTAg 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 740