OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

Ron. R;S. Wyche, 

Gregg County 

Langview, Texas 

Dear rs. Nyche: 

AUSTIN 

l?ebrwryx,4, 1939 

\ 

ing questlon: 

Revised Clvfl Statutes reads 

thousand (8 000) population according to the 

Census mag.~appoint one (1 r 

eaedlng sederal 

Deputy and no 

more; and each Justioe Preoinot ha~f.ng a oity 

or tom of eight thousand (8,000) and less 

than fort& thousand (40,000) population aocording to the preoedlng Federal Celwaa pay 

appoint two (2) Deputies and no more; and in 

eaoh Justioe Precinot having a town or city 

. ,,

'
Hon. R.S. Ilyahe, 

of forty thousand'(aO,OOO) population or 

more according to the preceding Federal Cen-. 

sus nay appoint five (5) DoDuties and~no more, 

and each and every instanoe said Deputy Constables shall qualify as required or Deputy 

SlltXiffS. 

Section 2. When the Constable ln eaoh 

and every instance named and desoribed in the 

preaeding section of this Aat shall desire 

to make appointment of a Deputy or Deputies, 

as to owe may be, said Constable shall first 

make written applioation to the Cammissioners* 

Court of his County.shovrlngthat it Is neoessary for suoh Constable to have.the Deputy or 

Deputies requested in order to properly handle 

the business of his offloe originating in the 

Preoinot in whioh suah Constable has.been sleoted, giving the name of eaoh proposed appointee; and If the Commissioners* Court shall 

Bind that the Constable is in need of the Deputy or Deputies requested to handle the buslness originating In his Precinct, then and In 

that event, and in that event only the Commissioners' Court shall approve an4 aonfirm 

the appointment of the Deputy or Deputies provided by this Aot. 

Section 3. "Any person who serves as 

a Deputy Bonstable without the provisions hereof hnving been aomplled with relative to his 

appofntment or any Constable who issues a Deputyship without the oonsent and approval of 

the Commlssloners* Court shall be fined not 

less than V5.ft.y Dollars ($50.00 nor more than 

One Thousand Dollars ($liOOO.OO 1 .* 

, 

Amerlcnn Law Reports, Vol. 93, p. 269, states 

that : 

uSome authorities have expressly held I- 
Eon. X.3. 

that 

does 

.” ,_I’ ;* 

d/‘/i 

,.’ 

d/ 223 ,,,‘. .L. 67 

J ,’ 

(4’~ ./ ,,+ -./ 

/</I c’) 

,’ 

?iycho, Februery%, lQ39, ?aCe 3 ' 

,+-- 

tho fact the& is no de jure officer 

not ohnnge the genernl rule that a de ^^. . _ . facto orrxer cannot rooover trie emoluments 

of the office so as to onable him to rocover for his services, ctt least whore he knows 

that his z-if&. to office is disputed." 

Citing Geams vs ‘;lest Yrankfust, 233 Ill. 479; 

Eubanks vs Xontgomery County, 105 5.X. 418. Also citing 

many other authorities whioh we do not deem necessargto 

mention here. 

The mere assumption of the. office by 

performanoe of one of even several ants appropriate to it without any recognition by 

the appointive power may not be ntifioient 

to oonstitute one a de facto officer and it 

has been held that (I person whose only olaim 

to orfice Is under appointment whioh.ls void 

and not merely irregular and fnformsl Is not 

a de facto offioer, but a mere intruder." 

Tar. Jnr., Vol. 34, p. 617, Sso.~lS3. Bincount VE Parker, 27 Ter. 558; ldurray vs State, 

48 Grim. Reports, 219, 87 S.ti. 349. 

In view of tho foregoing authorities, you'sre 

respeutfully adviood that it is the opinion of this department that the evident purpose of Article 6879a is to 

prohibit any psrson from claiming to be a de faoto deputy 

constable. The Legislature must have had In mind an existing evi1~hen~thi.s law, containing penal features, 17~ 

passed. Thorofore,,fncts, which might ordinarily constitute one a de facto ofricer, have no application hare 

and tho deputy mentioned in yourletter is not a de facto 

offiaor and the CommIssionera* Court hae no autborlty to 

pay him for his service upon approval of his ola5.m by the 

autitor. 

Trusting that the foregoing answers your in- 
/ Yours very truly 

A.i'TOIU~ G'3XJ2RAL CF T?X,ZS