**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 accordingto the Census mag.~appoint one (1 r eaedlng sederal Deputy and no more; and each Justioe Preoinotha~f.ng a oity **or** tom **of eight**  thousand **(8,000) and**  less than fort& **thousand** (40,000)population**ao** cording to the preoedlng **Federal Celwaa**  **pay** appoint two (2) Deputiesand no more; and in eaoh Justioe Precinot having a town or city 'i

. ,,.Hon. R.S. Ilyahe,

of forty thousand'(aO,OOO) population or more according to the precedingFederal 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 instancenamed and desoribed in the preaeding section of this Aat shall desire to make appointmentof a Deputy or Deputies, as to owe may be, said Constable shall first make written applioationto the Cammissioners* Court of his County.shovrlngthat it Is neoessary for suoh Constable to have.the Deputy or Deputies requested in order to properlyhandle the business of his offloe originatingin the Preoinot in whioh suah Constablehas.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 Deputiesrequested to handle the buslness originatingIn 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 Deputiesprovided by this Aot. Section 3. "Any person who serves as a Deputy Bonstablewithout the provisionshereof hnving been aomplledwith relative to his appofntmentor any Constablewho 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 authoritieshave expresslyheld 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, cttleast whore he knows that his z-if&.

to office is disputed." Citing Geams vs ‘;lest Yrankfust,233 Ill. 479; Eubanks vs XontgomeryCounty, 105 5.X. 418. Also citing many other authoritieswhioh we do not deem necessargto mention here.

The mere assumptionof the. office by performanoeof one of even several ants appropriateto it without any recognition **by** the appointivepower 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.lsvoid and not merely irregularand 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, containingpenal features, 17~ passed. Thorofore,,fncts, which might ordinarilyconstitute 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 autborltyto pay him for his service upon approval of his ola5.m by the autitor. Trusting that the foregoinganswers your in-/ Yours very truly A.i'TOIU~

G'3XJ2RAL

CF T?X,ZS