EATTORNEY GENERAL 

OFTEXAS 

January 10, 1962 

icnorable Henry Wade 

District Attorney 

Records Building 

Dallas 2, Texas 

Dear Mr. Wade: 

Opinion No. WW-1238 

Re: Waiver of salary of 

District Clerk when 

called into the Military 

Service. 

You have requested an opinion on these questions: 

1. While serving in the Armed Forces of the United 

States, and if he elects to do so, may the District Clerk of 

Dallas County, Texas, legally waive the salary to which he is 

entitled as District Clerk? 

2. Would such a waiver if executed, effectively 

bar later assertion of a claim for the salary whic.h might have 

been due in the absence of such waiver? 

In the view which we take, these questions may be 

answered together. First, what is a waiver? Black's Law 

Dictionary says: 

"Waiver is 

linquishment of 

This seems 

the intentional or voluntary rea known right." 

to be the standard definition. Relinquish 

means "to withdraw from; to abandon; to give up, to renounce 

a claim to;" Webster's New Collegiate Dictionary. When a 

thing is waived a genuine 

bona fide waiver there are no strings attached. A waiver 

denotes finality. 

The intent not to receive a salary while one is 

temporarily at other employment, such as serving in the army, 

but with the intent to come back later and claim the back pay, 

is not a waiver at all; it is merely a deferment in receiving 

pay. 

“Waiver, strictly speaking, is essentially 

unilateral in character; . . . it results as a 

legal consequence from some act or conduct of the 

party against whom it operates; and no act of the 

party in whose favor it is made is necessary to 

complete it." 
Honorable Henry Wade, page 2 (WW-1238) 

Keel v. Kilgore Transfer & Storage, 238 S.W.2d 

738, 741 (err.ref.) 

We quote from the syllabus in the following case: 

'Waiver is essentlally unilateral resulting 

as a legal consequence from some conduct of party 

against whom it operates, and no act of party 

against whom it operates and no act of party in 

whose favor It is made is necessary to complete 

it. 

"Waiver need not be founded upon a new 

agreement supported by consideration or based 

upon estoppel." 

Reserve Life Ins. Co. v. J. B. Martin, 312 S.W.2d 321 

'(Civ.App. 1936, error ref., n.r.e.). 

"Waiver implies abandonment and not reservation for Future use and in suit for injunction 

a 'waiver' or failure to seek pecuniary relief 

cannot be construed as a lawful segregation for 

future litigation of the recovery so waived." 

Words & Phrases, vol. 44 p. 520, citing 269 Fed. 630, 

. 

Corpus Juris Secundum says that a waiver is "the voluntary abandonment or surrender by a capable person of a right 

known by him to exist with the intent that such right shall 

be surrendered and such person deprived of its benefit." 

92 C.J.S.,pages 1047, 1048. 

We further quote from the same text: 

"It involves the concept of an intention 

entertained by the holder of some right to 

abandon or relinquish instead of insisting 

upon the right and implies abandonment, not 

segregation for future use." (Emphasis added) 

92 c.J.s., page 1049. 

We are not unmindful of the line of authorities 

to the effect that a public official may not legally make 

an agreement to accept a smaller salary than that provided 

by law. Such an agreement is said to be against public 

policy and void. 
Honorable Henry Wade, Page 3 (W~-l238) 

APP. 

In Crutcher v. Johnson County, 79 S.W.2d 932 (Civ. 

1935, Judge Alexander set forth the basic reasoning 

behind such rule by stating: 

"We are also of the opinion that the promise 

on the part of the plaintiff to serve as county 

commissioner for less than the salary fixed by 

the Legislature was contrary to public policy, 

and void. It is to be presumed that the Legislature, in fixing the salary to be paid to those 

who filled the various public offices of this 

state, did so with due regard to the nature of 

the service and the character of the ?tndividual 

needed to fill the office, and the type of officer that could be obtained for the salary offered. 

If a candidate for public office is permitted to 

obtain appointment or election by a promise to 

serve for less than the amount fixed by the Legislature, or if, after having obtained appointment or election, he is permitted to more securely 

entrench himself in office by such a promise and 

thus bring about his re-appointment or re-election, 

such practice will ultimately result in the virtual 

auctioning off of official positions to the lowest 

bidder, and the obtaining of the least efficient 

employees to fill the positions. Those capable 

of earning the salary fixed by the statute, and 

of the type contemplated by the Legislature, will 

be eliminated by such competitive bidding, so 

that none but the inefficient will be available 

for selection to fill the offices. Official 

morality and public policy alike prohibit the 

undermining of the public servic,e by permitting 

officers to thus make merchandise of their official services. Such promises by public offic,ials 

have been condemned as contrary to public policy, 

not only by the Supreme Court of this state, but 

by the federal courts, and the Courts of Appeals 

of almost every other state in the Union. . . ." 

However, we are of the opinion that the fact situation herein presented is distinct and distinguished from the 

holding in Crutcher v. Johnson County, supra. 

A District Clerk who is ordered into the military 

service must by necessity be absent from his official duties 

as District Clerk, and is, therefore, unable to "serve" in 

his official capacity. Although his absence does not create 

a vacancy in such office, such absence does create a situation 

which prevents him from performing the duties of his office.~ 
Honorable Henry Wade, page 4 (WW-1238) 

We fail to see that a waiver of a salary for services not performed due to a military absence would "be 

injurious to the public or against the public good" or that 

such waiver under the presented facts would have a "tendency 

to be injurious to the public." 

There is nothing in the Crutcher case nor in the 

other cases of similar holding from which we could conclude 

that the attempt by your District Clerk to waive his salary 

under the conditions which you mention would be against public 

P-jr, nor do we find anything else which would prevent such 

a waiver from being perfectly lawful and binding. 

There is a line of authority to the effect that 

sometimes an ostensible waiver is really onls an agreement 

to waive. Roberts v. Griffith, 207 S.W:2d 443 (Civ.App. 1948, 

error ref.) 92 C.J.S., p. 1055. The agreement is held to be 

an executory contract, requiring a consideration to support 

it just like any other contract or there must be something to 

create an estoppel. 

To eliminate all doubt as to the finality of the 

intention of the District Clerk to relinquish his salary 

without "strings" and without any Intention to seek recovery 

thereof upon his return from the military service, it is 

suggested that the Clerk execute a commitment waiving such 

salary. 

Under a commitment to the Commissioners Court it 

would seem to make little difference whether the arrangement 

be regarded as a waiver of salary or as an executory agreement to waive. In speaking of the latter alternative the 

following authority appropriately says: 

"Where there is no consideration, a promise 

or permission . . . if supported by action In 

reliance thereon, may excuse performance in the 

future of a condition or an obligation not due 

at the time." 16 C.J.S., page 1056. 

The following case is In point: 

"Where insurer under an automobile liability 

policy waived its rights to defend an action 

against insured, the right was lost forever and 

could not be reclaimed without the consent of 

insured who was thereby caused to obligate himself for an attorney's fee to an attorney retained by him and otherwise change his position." 
Y - 

Honorable Henry Wade, page 5 (~~-1238) 

(Civ.App. 

Witt v. Universal Auto Ins. Co., 1.16 S.W.2d 1095 

1938, error dism.). 

In Attorney General's Opinion No. O-5102 (1943) 

it was held that it was solely a matter of personal propriety 

for a District Attorney entering the military service to determine whether he wished to hold office and draw his salary 

a:-.? that he could legally do both if he wanted to. 

However, our Supreme Court has specifically held 

that the salary may be waived. 

Tex. 271, 

In Cramer v. Sheppard, 140 

167 S.W.2d 147 (1942), the Supreme Court had before 

it a case concerning the entrance of a District Judge into 

military service. The Court stated: 

II 

. . . Judge Dixon did not announce his 

resignation as District Judge at the time he 

entered the Army, nor did he publicly renounce 

his claim to the office, but he did specifically 

waive the compensation allowed b 1 h'l 

ing in the armed forces. . . .'I ' (KpEaZ ZIZ) 

Thus the Supreme Court has set at rest the question 

of whether public officials upon entering the military service 

may effect a waiver of salary. Therefore, the District Clerk's 

action, as outlined above, would be a "waiver" and not merely 

an executory agreement for a waiver. To sum up the legal effect of a waiver we quote from the following authority: 

"It is generally recognized that if a person 

in possession of any right waives that right he 

will be precluded thereafter from asserting it 

or from claiming anything by reason of it. That 

is, once a right is waived It Is rrnn? tnrever, 

and It cannot hr: reclaimed or recaptured, and 

the waiver cannot be retracted, recalled or 

expunged." 92 C.J.S., page 1069. 

We therefore answer both of your questions in the 

affirmative. 

SUMMARY 

While serving in the Armed Forces of the 

United States, if he elects to do so, the District 

Clerk of Dallas County may legally waive his salary. 
Honorable Henry Wade, page 6 (WW-1238) 

Such a waiver, if executed, would effectively 

bar a later assertion of a claim for the salary 

which might have been due In the absence of such 

waiver. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

WRS:ds 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Ben Harrison 

L. P. Lollar 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.