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 aperiod during which he was holding over awaiting appointment ofhis successor? Your request for an opinion asks whether the county commissioners court may legally pay ajustice of the peace his salary for the period he was holding over awaiting appointment ofhis successor. You provide the facts inyour request as follows: An individual elected justice of the peace for a four year term in November ,197Owas duly qualified and assumed the duties of such office onJanuary 1, 1971. On February 7, 1972, he filed as a candidate for the office oftax assessor and collector, and was defeated on May 6, 1972. At all relevant times up to the appointment ofhis successor on February 12, 1973, this man continued to perform the duties ofjustice 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 ofhis salary in view of Article 16, $65, of the Texas Constitution. He received nofurther payment of salary from that date until his reappointment as successor on February 12, 1973. Article 16, $65, ofthe Texas Constitution provides in part:

“Provided, however, if any ofthe 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 ofprofit or trust under the laws of this State or the United

p. 746The 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 ofthe 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 asjustice 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 ofthis provision is to insure against vacancies in office and a consequent cessation of the functions ofgovernment. Section 17provides for officers tohold over in the performance ofthe 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 ofhis resignation, as adejure officer. Plains Common Consolidated School Dist. No. 1of Yoakum County v. Hayhurst, 122S.W. 2d 322 (Tex. Civ. App. 3Amarillo, 1938, nowrit): Keen v. Featherston, 69S.W. 983 (Tex. Civ. APP. 8 1902. err. ref). See also Attorney General Opinions M-659 (1970); C-43 (1963) and WW-1253 (1962). Ifhe shows himself to be a dejure officer, he will he permitted to recover the compensation incident to the office. Jones v. City of Uvalde, 79S.W. 2d341 (Tex. Civ.App.. San Antonio, 1935, err. ref.); City ofSan Antonio Y. Coultress, 169S.W. 917(Tex. Civ.App., San Antonio, 1914, dis’m. w.o.j.). However, if, prior toqualification ofhis 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, 201S.W. 986 (Tex. Crim. 1918). It is our opinion therefore that the justice ofthe peace continued tohold over as a dejure officer following his aut.omatic resignation, under Article 16,

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

§65, Texas Constitution, and is therefore entitled to compensation for this period. SUMMARY A dejure justice ofthe peace may receive a salary for the period during which he was holding over awaiting appointment ofhis 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

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