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THEAITORNEY GENERAL OFTEXAS

Honorable C.H. Cavness State Auditor Austin, Texas
Dear Mr. Cavness: OpinionNo. O-4862 Re: Qualifying acts required of State, district, countg'and precinct officers prerequisite to the exercise of functions and right to fees or compensation therefor.
Your letter of September 16, 1942, submittingthe followingquestions has been given our careful consideration:

"1o Apart from any other qualifying acts required by law,may any officer legally enter upon the duties of office before taking the official oath specifiedby law as a qualifying act for that office? "2" In the event an officerbe duly elected or appointed to an office for which the law specifies more than one qualifying act, each being a dlst1nctlg separateperformance, is it an absolute requirement that all such acts be entirelyperformed before such officermay enter upon the duties of the office? "3. Is any~officer entitled to receive any fees or compensationwhatsoever for the performance of official servicesby virtue of having compliedwith one or more of the statutoryprovisibns applying to qualification for his office,but who has failed or refused to perform one, or more than one, other qualifying act specifiedby the Constltution or Statutes of the State? "4. In the event an elected or appointed officer has failed or refused to qualify in any one ormore particularsdemanded as a conditionprecedent to enteringupon the duties and receiving the fees or compensation of office, although the officer assumed all rights and prerogatives of the office-- -

Honorable C. H. Cavness,page 2 o-4862

and continuously exercised them for a long period of time the same In all respects as if fully qualified to do so, what correctivemeasures are required and upon whom devolves the duty of instituting the correctiveprocedure? “5

. In connectionwith Question 4, should such an officerbe found to have been in possession of the office for an unreasonably long period of time thoughnever fully legally qualified~to begin upon the duties of It, does the law require that he be forthwithremoved by due process and he or his successorvalidly installedby election or appointment, ormay he be legallypermitted to perform the unfulfilled requirements of qualification and continue in officewith no regard or responsibilityfor performance of official acts and collection of fees and compensation thereforduring the period of time he may be consldered to have been not qualified and in illegalpossession of the office? “6

. If an officer shall have failed or refused to fully perform the qualifying acts required by law to hold his offlce, and to have received fees, compensation,or other valuable considerationsto which it may be held he was not therefore legally entitled, Is any process for the recovery of sameprovidedby law and, if so,upon whom devolves the duty of Instituting such action?" Answering QuestionNo. 1: As submitted, it is difflcult, if not impossible,to answer. In order for an officer to legally enterupon his duties, he should, and strictly speaking, perhapsmust, take the official oath, and If required, give a bond.

Our courts have uniformly held, however, that where a person,who under a color of title, exercises the functions and performs the tasks of an officer,he is in law a de facto officer, although he may not be a de jure officer. See State v. Jordan, 28 S. W. (2) 921.

Question No. 2: We think what we have said relative to QuestionNo. 1 above will answer your QuestionNo. 2.

, If there is any particular officeryou destre to inquire I about, or any particular state of facts,we would be glad to give you an opinionbased on the specificdata.

QuestIonNo. 3: In response to your Question 3,Honorable C. H. Cavness,page 3 O-4862

we call your attention to Article 16 of theRevised Civil Statutes,which requires each officer In this State, whether elected or appointed,before enterlngupon his duties, to take and subscribe to the oath of office prescribedby ArticleXVI, Section 1, of the Constitution.

Article IV, Section 20, of our State Constitution provides that all commissions shall be signedby the Governor, and attested by the Secretary of State.

Article 3882, of the Revised Civil Statutes, provides:
"NO officialwho fails or refuses to take out a commission shallbe entitledto collect or receive either from the State or from individuals any money as fees of office or compensation for official services. Neither the Comptroller, Commissioners'Court, CountyAuditor, nor any other person, shall approve or pay any claim on account in favor of any such officerwho has so failed or refused." Since the Constitution of Texas provides that only the Governor of Texas can issue commissions to the elected officers,and that samemust be attested by the Secretary of State, and sinceArticle.3882 of theRevised Civil Statutes prohibits an officer from receiving any pay, who falls or refuses to take out his commission,you are advised that no officerwho has thus failed to obtain his commission is entitled to receive or be paid any compensation.

'Inview of the fact that before a commission can be issued the qualifying officermust submit sufficientproof to the Governor that he has been either elected or appointed, has executed the bond, and performed such other acts as are necessary to entitlehim to the commission,we deem it unnecessary to speculate on any other condition unless some specific facts are submitted.

Your QuestionsNos. 4, 5 and 6 present practically the samematter, and as such,we could not give an opinion thatwill apply to all conditions and circumstances that might arise.

If it becomesnecessary to have corrective legislation, that duty of coursewould fall upon the Legislature.

If an elective or appointive officer fails to comply with the law, and does not qualify, his office in someHonorable C. H. Cavness, page 4 o-4862

cases may be declared vacant by the commissioners'court, or he may be removed by quo warrant0 proceedings.

If he has been paid fees that he was not entitled to under the law, eitheras a de facto or a de jure officer. suit could be brought to recover same. If there are any such conditions, itwould be best for you to submit the facts surroundingeach case, and the AttorneyGeneral could then determine the proper course to pursue.

Articles 6887 and 1706 of the Revised Statutes provide that where a sheriffand/or a county treasurer falls to qualifywithin twenty days, his officemay be deemed vacant.

Article 1928, 1937 and 2340 of the Revised Clvll Statutes provide that the county judge, county cl:erk, and members of the commissioners'court, before they enterupon their duties, shall take the oath of office and give bond.

ArticleXVI, Section 17, of the State Constitution provides that all officerswithin this State shall continue to perform the duties of their officesuntil their successors shall be duly qualified. This provision has been construed by our courts.

InRobinson v. State, 28 S.W. 567, it appears that Robinson was elected sheriff ofHartley County for a second term, but failed ,to qualify as such. After he had served approximately one year of his second term, the CountyAttorney instituteda quo warrant0 proceedingagainst him In theDistrict Court to oust him from said office. Among otherdefenses, the sheriff claimed that since Section 17, of Article XVI, of the Constitutionprovides "thatall officerswithin this State shall continue to perform the duties of their offices until their successors shallbe duly qualified", he had a right to hold the officeunder his former election. In overruling this contention, the court used this language In the last paragraph of its opinion:

'* * * To sustain this positionwould be to hold that therewould be no necessity for an officer to qualifybut one time, as long as he can be successful inbeing elected to succeed himself. We think his election the second time would, upon his failing to qualify thereunder, create such a vacancy in the office as would authorize the commissioners'court to appoint another to fill it;"
In Goehenour v. Anderson, 81 S.W. 104, the court,Honorable C. H. Cavness,page 5 o-4862

In in to passing upon the question as to whether therewas a vacancy the county -judge's office,by reason of his having failed gLve the required bond, used this language:

' l * * If the commissionersreally considered and rejected as Insufficientthe bonds tenderedby appellant, (county judge)and he failed to tender other and sufficientbonds within the time prescribed by law, a vacancywas created in the office of county judge,which they (theCommissioners)were authorlzed to fill."
In Flatan v. State, 56 Tex. 93, the court used this language: "Underthe laws of this state, it is necessary for a personwho has been elected to the office of sheriff to take the oath of office and to execute the bonds prescribedby law. After a person elected receives his certificate of election,which is all the notice to which he is entitled, it Is his right and duty to qualify;wtthout quallflcationhe has no right to the office, and it is Incumbentupon suchperson so to qualifywithout notification so to do from the county commissioners' court, and without notice that the officewill be declared vacant, and filled if he neglects or refuses to qualify."
In State v. Box, 78 S.W. 982, the court, in holding that the sheriff,who had been elected for a second term,was required to give a new bond. in order to keep the Commissloners'court fromdeclaring the officevacant, used this language:

"As to appellee's claim that he was entltled to' hold over, notwithstandinghis failure to qualify, because he had already taken the oath of office and given bond as appointee of the commissioners'court, we need only cite the opinion of JusticeHead in Robinson v. State, 28 S.W. 566, holding to the contrary." We trust the above sufficientlyanswers your questions.Honorable C. R. Cavness,page 6 O-4862

Very truly yours ATTORNEY GENWAL OF TEXAS

By s/Geo.W.Barcus Geo.W. Bareus Assistant GWB:MFl:wc

APPROVED OCT 9, 1942 s/GroverSellers FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion CommitteeBy s/RWF Chairman