- -- - 

THEAITORNEY GENERAL 

OFTEXAS 

Honorable C. H. Cavness 

State Auditor 

Austin, Texas 

Dear Mr. Cavness: Opinion No. 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, submitting the 

following questions has been given our careful consideration: 

"1 o Apart from any other qualifying acts required by law, may any officer legally enter upon 

the duties of office before taking the official 

oath specified by law as a qualifying act for that 

office? 

"2 " In the event an officer be duly elected 

or appointed to an office for which the law specifies more than one qualifying act, each being a 

dlst1nctlg separate performance, is it an absolute 

requirement that all such acts be entirely performed before such officer may enter upon the duties 

of the office? 

"3 . Is any~ officer entitled to receive any 

fees or compensation whatsoever for the performance of official services by virtue of having complied with one or more of the statutory provisibns 

applying to qualification for his office, but who 

has failed or refused to perform one, or more than 

one, other qualifying act specified by 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 

or more particulars demanded as a condition precedent to entering upon 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 corrective measures are required and upon whom devolves the duty of instituting the corrective procedure? 

“5 . In connection with Question 4, should 

such an officer be found to have been in possession of the office for an unreasonably long period 

of time though never fully legally qualified ~to 

begin upon the duties of It, does the law require 

that he be forthwith removed by due process and 

he or his successor validly installed by election 

or appointment, or may he be legally permitted to 

perform the unfulfilled requirements of qualification and continue in office with no regard or responsibility for performance of official acts and 

collection of fees and compensation therefor during the period of time he may be consldered to 

have been not qualified and in illegal possession 

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 considerations to which it may be held he was not 

therefore legally entitled, Is any process for the 

recovery of same provided by law and, if so, upon 

whom devolves the duty of Instituting such action?" 

Answering Question No. 1: As submitted, it is difflcult, if not impossible, to answer. In order for an officer 

to legally enter upon his duties, he should, and strictly 

speaking, perhaps must, 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 Question No. 1 above will answer your Question No. 2. 

, If there is any particular officer you destre to inquire 

I about, or any particular state of facts, we would be glad to 

give you an opinion based on the specific data. 

QuestIon No. 3: In response to your Question 3, 
Honorable C. H. Cavness, page 3 O-4862 

we call your attention to Article 16 of the Revised Civil 

Statutes, which requires each officer In this State, whether 

elected or appointed, before enterlng upon his duties, to 

take and subscribe to the oath of office prescribed by 

Article XVI, Section 1, of the Constitution. 

Article IV, Section 20, of our State Constitution 

provides that all commissions shall be signed by the Governor, and attested by the Secretary of State. 

Article 3882, of the Revised Civil Statutes, provides: 

"NO official who fails or refuses to take 

out a commission shall be entitled to 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, County Auditor, nor 

any other person, shall approve or pay any claim 

on account in favor of any such officer who 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 same must be attested by the Secretary of 

State, and since Article.3882 of the Revised Civil Statutes 

prohibits an officer from receiving any pay, who falls or 

refuses to take out his commission, you are advised that no 

officer who has thus failed to obtain his commission is entitled to receive or be paid any compensation. 

'In view of the fact that before a commission can 

be issued the qualifying officer must submit sufficient proof 

to the Governor that he has been either elected or appointed, 

has executed the bond, and performed such other acts as are 

necessary to entitle him to the commission, we deem it unnecessary to speculate on any other condition unless some 

specific facts are submitted. 

Your Questions Nos. 4, 5 and 6 present practically 

the same matter, and as such, we could not give an opinion 

that will apply to all conditions and circumstances that 

might arise. 

If it becomes necessary to have corrective legislation, that duty of course would fall upon the Legislature. 

If an elective or appointive officer fails to comply with the law, and does not qualify, his office in some 
Honorable 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, either as a de facto or a de jure officer. 

suit could be brought to recover same. If there are any 

such conditions, it would be best for you to submit the facts 

surrounding each case, and the Attorney General could then 

determine the proper course to pursue. 

Articles 6887 and 1706 of the Revised Statutes provide that where a sheriff and/or a county treasurer falls to 

qualify within twenty days, his office may 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 enter upon 

their duties, shall take the oath of office and give bond. 

Article XVI, Section 17, of the State Constitution 

provides that all officers within this State shall continue 

to perform the duties of their offices until their successors 

shall be duly qualified. This provision has been construed 

by our courts. 

In Robinson v. State, 28 S.W. 567, it appears that 

Robinson was elected sheriff of Hartley County for a second 

term, but failed ,to qualify as such. After he had served approximately one year of his second term, the County Attorney 

instituted a quo warrant0 proceeding against him In the District Court to oust him from said office. Among other defenses, the sheriff claimed that since Section 17, of Article 

XVI, of the Constitution provides "that all officers within 

this State shall continue to perform the duties of their offices until their successors shall be duly qualified", he had 

a right to hold the office under his former election. In 

overruling this contention, the court used this language In 

the last paragraph of its opinion: 

'* * * To sustain this position would be 

to hold that there would be no necessity for an 

officer to qualify but one time, as long as he 

can be successful in being 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 there was a vacancy 

the county -judge's office, by reason of his having failed 

gLve the required bond, used this language: 

' l * * If the commissioners really considered 

and rejected as Insufficient the bonds tendered by 

appellant, (county judge) and he failed to tender 

other and sufficient bonds within the time prescribed 

by law, a vacancy was created in the office of county 

judge, which they (the Commissioners) were authorlzed to fill." 

In Flatan v. State, 56 Tex. 93, the court used this 

language: 

"Under the laws of this state, it is necessary 

for a person who has been elected to the office of 

sheriff to take the oath of office and to execute 

the bonds prescribed by 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 quallflcation he has 

no right to the office, and it is Incumbent upon 

such person so to qualify without notification so to 

do from the county commissioners' court, and without 

notice that the office will 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 from declaring the office vacant, used this language: 

"As to appellee's claim that he was entltled 

to' hold over, notwithstanding his 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 Justice Head in 

Robinson v. State, 28 S.W. 566, holding to the contrary." 

We trust the above sufficiently answers 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/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/RWF Chairman