- 

OFFlCEOFTHEAI-fORNEY GENERALOFkCAS 

AUSTIN 

rranorablu GeoI 

comptroller of 

Austin, Texas 

Ii. Sheppard 

Pltb1l.a Accounts 

Dear &r. Sheppardi Oplnian No. o-48 

H8l Authorit 

Your letter of Ootob 

o@.ion of this department u 

is as follous~ 

requesting's legal 

aptioned subjeat 

Y. Crcuuar, Spe 

for the OStb J 

dered to the 

ers of the. Bar of 

1. 9. Lirsmlft$t ham3 

0 legal.$ty of the 

Y. Cramer as Speoial Judge 

1 District, and have f&led 

nt l statelaent at faots toint of law he has raised in 

e authority of tho @embera of 

o elect a Special Judge to a 

&am submitting the entire file here- 

;:i?'%i will thank you to advise thle department Whether ~0 are authorized to pay the cl8im 

of William Ai. Cramer as pswsented.* 

Seotion I2 of Article XVI of the Constitutloo Is 

as follows: 

'. 
Honorable Goo. D. Sheppard - page 2 

"Do member of Congress, nor person holding or exercising any offioe of profit or 

trust, under the Unitsd States, or elther~of 

them, or under any foreign paver, shall be 

eligible as a member of the Legislature, or 

hold or exercise any Office of profit or 

trust under this Stet8.' 

In State Y. DeGress, 53 70x. !Y&, it was held 

that an officer of tho United statas on tho retired list 

oonstitutes a part of the Army of the United States, and 

that as such offioer, he was forbiddan to hold at the same 

time the office of hayor of the City of Austin. State Y. 

DeGress, 53 Tex. 357, In -SX JWt.8 Dailey, 248 S. V. 91, 

the court of Criminal Appeals emphasized this by exoopting 

from the rule the caee of a.member of tho National Ouard 

who had not been called in+ actunl service of tho United 

states, the office being thPt of District Judge. 

IT112 rule is further aacentuated in the case of 

Lowe Y. Stata, *.-heroin the Courtof Criminal Aypsals ufferontiated the statu s of a &tional Guardsman and Mstriot Judge. i'ha District Judge being absent, the Bar 

cleated a Special Judge, and the r0gular &zdgz thereafter 

rent Into the active service, and the court hold that the 

Special J&g0 had &Wer t6 continue the term already begun* Lou0 'I. state, 201 s.'V. 956. 

It is uell settled that xhere one aocepts an incompatible office with tho one he holds he thereby automatioally as matter of law raoatos the first office. State 

Y. DeGress, suprat Love Y. 'State, supra~ Diencourt Y. Parker, 

27 Tax. 655; atate Y. tiritierhoff, 60 Tex, 45, 17 5. w. 1093 

Stat8 Y. Valentine, 195 5. ,q* 1000; Druitt 1. Glen Dose Indopondent Sohool Dist. tie, 1, 34 S. x. (2) 1004; 3,OO A.L.R. 

11w; deal Y. Hnilroad Cometssion of' %'eu;rs, 107 9. W. (2) 

439. 

Under the faots f5hGr;n by the instruments aooompanying your letter, Judge Diehard J. Dixon, the regularly eleoted District Judge for the OSth Judicial Mstriet, as a roluntoer was temporarily nppGinted and coox&ssioned as a LIaJor in 

the Arn.q cf tho United Statos, suc.h commlasion to continue in 

force durpng the pleasure of the Frasidcnt of tbe United 

States for the tiuo bOing, and for the duration of the pree- 
kionorablo (ioo. n. Shiqqmmi - Pws 3 

ent esiegvncy and e&x months 

teminutod, and ha* aoeeptod 

aotuall~ boon engaged in the 

until the present time. mr. 

tharooftar, ualoee 6oom1 

such nppolIltAwnt, aal ho8 

oerviae ns such Aisjor ug 

Cramr was elootsd by the 

Lar of Dallas County, after such apyointmant a& qualificrrtion OS Judge Dixon. 

Js shorn by tha rwi.ous instruEi?nts aeoolripaqing your +.etter, Judga Dixon dims not oou@ritla.h any of 

tha sraoptiona oontaioed in Um Constitutf.aa, an& therefore not ritbin t&s 08Ls.S Of Carpontsr T. Smppard‘ 146 

s. u. (2) 652. Judga Dixon has, thorefor3, ?racated *&s 

offloe of D&strict Judgs. 

Yauoanclos tn tlro 0PMcs of Julga 0P the i?&etibt 

Courts are rsquirsd to bs Cillad by the Covarnor. 

Art. v, of the Constitutf6n. 

soo. 28, 

.Sn U$tion 31). O-1784 th%is EJ~artDer&, rUl:M, 

n~hat no rmwision has bs3n made i'i:? Um elostion of a 

Special &dg3, or tlm ussl@mrtrlt of a Ju&,ne BOBI another 

district tithin th3 sdminLetrativ* dhtrlct, f ollcruing 

tho death Of tha r0~3lar judge, and prior to the Pilling 

oi 3~s rzomcy oocasimed by Lb death of the District 

Jwlga bJ ap9ointaent made by ths tiwsrnor.r sno, Leonard 

V. Sqour, 4s 5. U. (3) 474; Clo+er Y. dlbrooht, 173 S.V&O(. 

“It shall bb unlacrPu1 Tar any offiaor or 

court or this Stats, or of any zmniclpal (XlrLsion theroof, to allou, audit, gay or order to 

bo polil, tha alaim of my porsoa for rralsq, 

compansation, ieJs, purqulsitos, sntclmonts or 

sorvfcas, as an oiiicsr of tha Strto or of any 

mmiciyal division theraof, axcapf to auoh person as has bozn duly alactad such officer by 

the qwliriad rotors of this State, and irhose 

alection has been asoertained and ccrtlf%ed or 

dccl~ad in the anrrnner required by lw, or who 

has bean appointed suoh ofricer by the lsrful 

8ppointing 9cmr under the Constitution and 

lP\rls or this St&o, or who has bow odjudsed 

untitled thereto by a State court of competent 

jurisdiction, and has qualified as such off"tcor 

in aoeordonoo with law. Any person not so elootod, appointed and qualified shall not be entitled 

to roosivo pay for 00rvic3s a~ such offioer, or 

to erarcise the powers or jurisdiotion of such 

offi cm. Tlr3 official aota of any peraoa cl&~- 
Honorable 000. ii. Sheppard - page 4 

* 8 right to exercise such power or jutisalotion oontrary to the provisions of this 

law shall bo void.* 

If it be contended that Yr. Cramer is entitled to 

compensation as *Speoial Districrt Judge*,,the answer is clear 

that the saw does not provide for the off'j$e oi *Special District Judge*, where the offiae of *Metriot Judge' is vacant, 

Sinoe thore is no office of l Special District JudgtP provided 

for undar the oiFCUmatam3s, it Is obvious that Er. Cr.aamer 

can not be paid companeatlon authorized by law for .$peaial 

District JudgozP -- for tha oompensation provided 1s foPthe 

ocoupants of the de fur0 offiaes of *Special District Judge*. 

Pou are thwuforo respectfully advised that there 

exists no authority for paying Spwial Judge Cramr for his 

sarvlcos. 

This opinion, of course, In noaisd passes upon the 

Question of the validity of Judge Cramvr*s acts, decrees and 

tis.3 likza, since such quostion is not involved in your inquiry. 

very truly yours 

ATTORXdX U2NSRAL OF T2US 

BY .I. 

O&e ‘Spaosr 

I 

Assistant