-

-. THE ATTORNEY GENERAL 0F TEXAS

December 2, 1988

Honorable Bob Bullock OpinionNo. JR-989 Comptroller of PublicAccounts L.B.J. State Office Building Re: Whether the Comptroller Austin, Texas 78774 may pay the salary of a visiting judgewho has been improperlyappointed (RQ-1494)
DearMr. Bullock:
You ask whether the Comptrollerof PublicAccounts may lawfullypay the salary of a visiting judgewho was appointed to preside over a casewithout all of the statutory formalities for that appointmenthaving been fulfilled.
Your question appears to have been prompted by a recent opinion of the Supreme Court of Texas in Statev. Preslar, 751 S.W.2d 477 (Tex.1988). Insofar as ispertinent to your inquiry, Preslarheld that the~chiefJustice of the Supreme Court of Texas lacks the authority to assign a retired judge to sit as a visiting judgewithin the administrative region of his residence absent the special circumstancesenumerated in section 74.049 of the GovernmentCode.1

1. Section 74.049provides: The chief justicemay make assignments within an administrativeresion and perform the other duties of a presiding judge in the following situations: (1) on the death or resignationof the presiding judge and until a successor presiding judge is appointed:
(2) on notificationto the chief justice by the presiding judge or other appropriate source that an absence,disabling illness, or other incapacity of the presiding judge (FootnoteContinued)

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In Preslar, the question of payment of the visiting judge for services rendered, if any,was not an issue. The questionbefore the court arose in an originalmandamus 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 administrativeregion 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 officermay not recover compensation for services not rendered. Glennv. Town of Trenton, 256 S.W. 631 (Tex.Civ.App. - Texarkana, 1923,no writ). While you do not statewhat statutory formalities were omitted in the appointmentof the visiting judge,we believe the guidelines set forth in the followingauthorities will be of assistance to you in determiningwhether the visiting judgehas served in a de factoposture 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.
InAttorney General Opinion JM-874 (1988)the matter of the validity of the actions taken by a commissioner during

(FootnoteContinued)

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 particularmatter inwhich the presiding judge disqualifies himself from performing the duties of presiding judge in that matter. (Emphasisadded.)

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- the tenure of an appointee member subsequently found

ineligiblewas addressed,as follows:

A de facto officer is onewho, 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. - FortWorth 1949,writ ref'd n.r.e.): Citv of Christinev. Johnson, 255 S.W. 629 (Tex. CiV. APP. - San Antonio 1923, no writ). The designationof 'de factoofficer' may attach to one who holds officeunder color of an appointmentthat 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 performedby a de facto officerunder color of office are considered valid. Worton v. Shelbv County, 118U.S. at 441-42:Germanv v. w, 222 S.W.2d at 176. &9 generallv 39 Tex. Jur. 2dMunicinal Coroorations 5 144 and cases cited therein: 67 C.J.S.pfficers 55 269-70. Here, as inVick 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 factoofficer, and 'as such his acts are as binding as thoughhe was an officer de jure.'2 Shriberv. Culberson, 31 S.W.2d 659, 661 (Tex.Civ.App. - Waco 1930,no writ). Attorney General OpinionJM-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: Descriptiveof a condition inwhich there has been total compliance with all requirementsof law. Of right; legitimate: lawful:by right and just title. In this sense it is the contraryof de facto.

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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, theremust 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 judgewho has retiredpursuant 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 justicemay assign judges (activeor retired) of one or more administrative regions for service in other administrativeregions. The presiding judge of an administrativeregion is authorized to assign judges (activeor retired) to hold special or regular terms of court in any countywithin the administrative district pursuant to the provisions of section 74.056 of the Government Code. A judge assignedunder 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 assignmentof a judge to sit in a courtmay not in the strictest sense of the term constitute an appointment to an office,no reason is perceivedwhy the rationaleunderlying the law relative to de facto officers is not applicable. While we cannot envision every scenario which might arisewhere 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 renderedwhile 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 Preslarwould dictate that the judge is disqualified and would not be entitled to further compensation for services rendered following such disqualification. -_,

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SUMMARY The Comptrollerof PublicAccounts may lawfullypay the salary of a visiting judge (active, or retired pursuant to section 75.001 of the GovernmentCode) assigned under the color of authority to a court existing under the laws of this state for services renderedwhile sitting on the court to which he or shehas servedpursuant to such assignment. In the event eitherparty 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 thatmay be rendered following disgualification. -Jzy$f&

MATTOX Attorney General of Texas
MARY KELLER FirstAssistantAttorney General
MU MCCREARY ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General
RICK GILPIN Chairman,Opinion Committee Preparedby Tom G. Davis AssistantAttorney General

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