-

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 thisdepartment 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 SpecialJudge 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 WilliamAi.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 personholding or exercising any offioe of profit or trust, under theUnitsd States, or elther~of them, 

### orunder any foreign 

### paver, shallbe 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 theUnited States, and that as such offioer,he was forbiddan tohold at 

### the same time the office 

### ofhayor of the City ofAustin. StateY. DeGress, 53 Tex. 357, In -SXJWt.8 Dailey, 248 S. V. 91, the court of CriminalAppeals emphasized thisby exoopting from the rule the caee of a.member 

### of thoNational Ouard who had not been called in+ actunl service of thoUnited states, the officebeing thPt of DistrictJudge.

IT112 rule is further aacentuated in the case of Lowe Y. Stata, *.-heroin the Courtof CriminalAypsals ufferontiated the status 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 courthold that the Special **J&g0** had &Wer t6 continue the termalreadybegun* 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, supratLove Y. 'State,supra~Diencourt Y. Parker, **27** Tax. 655; atateY. 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 thefaots 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 LIaJorin the Arn.qcf tho United Statos, suc.hcommlasion to continue in force durpng the pleasure of the Frasidcnt of tbe United States for the tiuo **bOing,** and for the duration of thepree-kionorablo(ioo. n. Shiqqmmi - 

### Pws 3

ent esiegvncy and e&xmonths teminutod, andha* 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 elootsdby the Lar of Dallas County,after such apyointmant a& qualificrrtionOS Judge **Dixon.**

Js shornby tha rwi.ous instruEi?ntsaeoolripaq**ing your**  **+.etter, Judga** Dixon dims not oou@ritla.h any of **tha sraoptiona**  **oontaioed in**  **Um Constitutf.aa,**  **an& there**  fore **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 tlro0PMcs of Julga 0P thei?&etibt Courts are rsquirsd tobs Cillad by theCovarnor. **Art. v,**  **of the**  **Constitutf6n. soo.**  **28,**

.SnU$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 tlmussl@mrtrltof a **Ju&,ne BOBI** another district tithin th3 sdminLetrativ* dhtrlct, follcruing thodeath Of tha r0~3lar judge, and prior to the Pilling oi 3~s rzomcy oocasimed by Lb death of theDistrict Jwlga bJ ap9ointaentmade by ths tiwsrnor.r sno, Leonard V. Sqour, 4s 5. U. (3)474; Clo+er Y. dlbrooht, 173 S.V&O(.



### “It shallbb unlacrPu1Tar 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 officerby the qwliriad rotors of this State, and irhose alectionhas been asoertained and ccrtlf%ed 

### or dccl~ad in the anrrnner required by lw, or who has bean appointed suoh ofricerby the lsrful 8ppointing 9cmr under the Constitution and lP\rls or this St&o, or who has bow odjudsed untitled theretoby a State court of competent jurisdiction,and has qualified as such off"tcor in **aoeordonoo**with law. Any personnot so elootod, appointedand qualified shall not be entitled
to roosivo pay for 00rvic3s a~ such offioer, or to erarcise the powers or jurisdiotion of such officm. 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 thatYr. 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 SpecialDistrict JudgtP provided for undar the oiFCUmatam3s, it Is obvious thatEr. **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 *SpecialDistrict 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 passesupon the Question of thevalidity of Judge Cramvr*s acts, decrees and tis.3 likza, since such quostion is not involved in your inquiry.



## verytrulyyours
ATTORXdX U2NSRALOFT2US

BY .I.

O&e ‘Spaosr I
Assistant