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-. 

THE ATTORNEY GENERAL 

0F TEXAS 

December 2, 1988 

Honorable Bob Bullock Opinion No. JR-989 

Comptroller of Public Accounts 

L.B.J. State Office Building Re: Whether the Comptroller 

Austin, Texas 78774 may pay the salary of a 

visiting judge who has been 

improperly appointed 

(RQ-1494) 

Dear Mr. Bullock: 

You ask whether the Comptroller of Public Accounts may 

lawfully pay the salary of a visiting judge who was appointed to preside over a case without all of the statutory 

formalities for that appointment having been fulfilled. 

Your question appears to have been prompted by a recent 

opinion of the Supreme Court of Texas in State v. Preslar, 

751 S.W.2d 477 (Tex. 1988). Insofar as is pertinent to your 

inquiry, Preslar held that the~chief Justice of the Supreme 

Court of Texas lacks the authority to assign a retired judge 

to sit as a visiting judge within the administrative region 

of his residence absent the special circumstances enumerated 

in section 74.049 of the Government Code.1 

1. Section 74.049 provides: 

The chief justice may make assignments 

within an administrative resion and perform 

the other duties of a presiding judge in the 

following situations: 

(1) on the death or resignation of the 

presiding judge and until a successor 

presiding judge is appointed: 

(2) on notification to the chief justice 

by the presiding judge or other appropriate 

source that an absence, disabling illness, 

or other incapacity of the presiding judge 

(Footnote Continued) 

p. 5056 
Honorable Bob Bullock - Page 2 (JM-989) 

In Preslar, the question of payment of the visiting 

judge for services rendered, if any, was not an issue. The 

question before the court arose in an original mandamus proceeding challenging the authority of the Chief Justice of 

the Supreme Court to assign a retired judge to sit as a 

visiting judge within the administrative region where he 

resides. 

A de facto officer may recover compensation for 

services rendered. Harris Countv v. Hunt, 388 S.W.2d 459, 

465 (Tex. Civ. APP. - Houston 1965, no writ); 60 Tex. 

Jur. 3d Public Officers and Smnlovees § 257. On the other 

hand, a de facto officer may not recover compensation for 

services not rendered. Glenn v. Town of Trenton, 256 S.W. 

631 (Tex. Civ. App. - Texarkana, 1923, no writ). 

While you do not state what statutory formalities were 

omitted in the appointment of the visiting judge, we believe 

the guidelines set forth in the following authorities will 

be of assistance to you in determining whether the visiting 

judge has served in a de facto posture and is entitled to be 

paid for services rendered. 

The policy underlying the doctrine of de facto officers 

was stated in French v. State, 572 S.W.Zd 934, 935 (Tex. 

Crim. App. 1978, no pet.). 

The doctrine of' officers de facto was 

created as a matter of public policy to 

protect both an officer appointed by some 

power having \color' of authority to appoint 

him and the public relying on the validity of 

that appointment. 

In Attorney General Opinion JM-874 (1988) the matter of 

the validity of the actions taken by a commissioner during 

(Footnote Continued) 

prevents the judge from performing his 

official duties for a period of time and 

until the presiding judge is again able to 

perform the duties; and 

(3) in a particular matter in which the 

presiding judge disqualifies himself from 

performing the duties of presiding judge in 

that matter. (Emphasis added.) 

p. 5057 
I Honorable Bob Bullock - Page 3 (JM-989) 

- 

the tenure of an appointee member subsequently found 

ineligible was addressed, as follows: 

A de facto officer is one who, by his 

acts, has the appearance of holding the 

office he has assumed, but who in fact does 

not validly hold the office. Germanv v. 

m, 222 s.W.Zd 172, 176 (Tex. Civ. App. - 

Fort Worth 1949, writ ref'd n.r.e.): Citv of 

Christine v. Johnson, 255 S.W. 629 (Tex. CiV. 

APP. - San Antonio 1923, no writ). The 

designation of 'de facto officer' may attach 

to one who holds office under color of an 

appointment that is subsequently invalidated 

on the grounds that the appointee was 

ineligible. Norton v. Shelbv Countv 118 

U.S. 425, 446 (1886); Sx carte Trace;, 93 

S.W. 538, 542 (Tex. Crim. App. 1905). Acts 

performed by a de facto officer under color 

of office are considered valid. Worton v. 

Shelbv County, 118 U.S. at 441-42: Germanv v. 

w, 222 S.W.2d at 176. &9 generallv 39 

Tex. Jur. 2d Municinal Coroorations 5 144 and 

cases cited therein: 67 C.J.S. pfficers 55 

269-70. 

Here, as in Vick v. Citv of Waco, [614 

S.W.2d 861, Tex. Civ. App. - Waco 1981, writ 

ref'd n.r.e.1 the challenged officers were 

acting under color of authority. Thus, each 

was a de facto officer, and 'as such his acts 

are as binding as though he was an officer de 

jure.'2 Shriber v. Culberson, 31 S.W.2d 659, 

661 (Tex. Civ. App. - Waco 1930, no writ). 

Attorney General Opinion JM-874 (1988) at 2, 3. 

"Color of authority" as applied to de facto officers, 

"is authority derived from an election or appointment, 

(5th :d. 

De jure is defined in Black's Law Dictionary 382 

1979) as: 

Descriptive of a condition in which there 

has been total compliance with all 

requirements of law. Of right; legitimate: 

lawful: by right and just title. In this 

sense it is the contrary of de facto. 

-P. 5058 
Honorable Bob Bullock - Page 4 (JM-989) 

P.2d 901 (Wash. 1942): see cases cited at 7A Words and 

Phrases 300. 

Before an officer can be regarded as a de facto 

officer, there must be an office that he or she could hold 

de jure. Citv of Dallas v. McDonald, 103 S.W.2d 725 (Tex. 

1937). Section 75.002 of the Government Code authorizes the 

assignment of a judge who has retired pursuant to section 

75.001 of the Government Code to sit on any court of the 

state of the same or lesser dignity as that on which the 

person sat before retirement. Section 74.057 of the Government Code provides that the chief justice may assign judges 

(active or retired) of one or more administrative regions 

for service in other administrative regions. The presiding 

judge of an administrative region is authorized to assign 

judges (active or retired) to hold special or regular terms 

of court in any county within the administrative district 

pursuant to the provisions of section 74.056 of the Government Code. A judge assigned under any of the foregoing 

provisions "has all the powers of the judge of the~court to 

which he is assigned." Gov't Code 5 74.059. Clearly, a 

judge serving in another court pursuant to assignment 

occupies a position or office that he or she could hold de 

jure. While the assignment of a judge to sit in a court may 

not in the strictest sense of the term constitute an 

appointment to an office, no reason is perceived why the 

rationale underlying the law relative to de facto officers 

is not applicable. 

While we cannot envision every scenario which might 

arise where there is a departure from statutory assignment 

requirements, we believe that any judge (active, or retired 

pursuant to section 75.001 of the Government Code) assigned 

under the color of authority to a court existing under the 

laws of this state is entitled to be compensated for 

services rendered while sitting on that court. 

In Preslar the court further held that the 1987 

amendment to section 74.053 of the Government Code did not 

repeal subsection (b) which provides "[iIf a party to a 

civil case files a timely objection to the assignment, 

the judge is disqualified to hear the case." While your 

scenario does not include this factor it is noted that in 

the event of objection by either party the holding in 

Preslar would dictate that the judge is disqualified and 

would not be entitled to further compensation for services 

rendered following such disqualification. 

-_, 

p. 5059 
Honorable Bob Bullock - Page 5 (JM-989) 

SUMMARY 

The Comptroller of Public Accounts may 

lawfully pay the salary of a visiting judge 

(active, or retired pursuant to section 

75.001 of the Government Code) assigned under 

the color of authority to a court existing 

under the laws of this state for services 

rendered while sitting on the court to which 

he or she has served pursuant to such assignment. In the event either party to a civil 

case files an objection to the assignment, 

the judge is disqualified under section 

74.053(b) of the Government Code and is not 

entitled to compensation for any services 

that may be rendered following disgualification. 

-Jzy$f& 

MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

MU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 5060