### EATTORNEY GENERAL OFTEXAS

January 10, 

### 1962

icnorableHenry Wade District Attorney RecordsBuilding Dallas 2, Texas Dear Mr. Wade: OpinionNo.

### WW-1238 Re: Waiver of salary of District Clerkwhen called into the Military Service.

You have requestedan 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, legallywaive 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 salarywhic.h might have been due in the absence of suchwaiver?

In the view which we take, these questionsmay be answered together. First, what is a waiver? Black's Law Dictionary says:

"Waiver is linquishmentof This seems the intentionalor voluntary rea known right." to be the standarddefinition.Relinquish means "towithdraw from; to abandon; to give up, to renounce a claim to;" Webster's New CollegiateDictionary. 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 salarywhile 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 againstwhom it operates; and no act of the party in whose favor it ismade is necessary to complete it."Honorable HenryWade, 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 essentlallyunilateral resulting as a legal consequence from some conduct of party against whom it operates,and no act of party againstwhom it operates and no act of party in whose favor It ismade is necessary to complete it. "Waiverneed not be founded upon a new agreement supportedby considerationor 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 Futureuse and in suit for injunction a 'waiver'or failure to seekpecuniary relief cannot be construed as a lawful segregationfor future litigationof 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 surrenderby a capable person of a right known by him to existwith the intent that such right shall be surrenderedand suchperson 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 entertainedby the holder of some right to abandon or relinquish instead of insisting upon the right and implies abandonment,not segregationfor future use." (Emphasisadded) 92 c.J.s., page 1049. We are not unmindful of the line of authorities to the effect that a public officialmay not legallymake 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 Crutcherv. 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 commissionerfor less than the salary fixed by the Legislaturewas 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 variouspublic 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 couldbe obtained for the salary offered. If a candidate for public office is permitted to obtain appointment or electionby 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 entrenchhimself in office by such a promise and thus bring about his re-appointmentor re-election, suchpracticewill ultimately result in the virtual auctioning off of officialpositions 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 contemplatedby the Legislature,will be eliminatedby such competitivebidding, so that none but the inefficientwill 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. Suchpromisesby public offic,ials have been condemnedas contrary to public policy, not onlyby 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 distinguishedfrom the holding in Crutcherv. Johnson County, supra.

A District Clerkwho is ordered into themilitary servicemust by necessitybe absent from his official duties as District Clerk, and is, therefore,unable to "serve" in his official capacity. Althoughhis absence does not create a vacancy in such office, such absence does create a situation which preventshim 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 suchwaiver 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 similarholding from which we could conclude that the attemptby your District Clerk to waive his salary under the conditionswhich youmention would be against public P-jr, nor do we find anything elsewhich would prevent such a waiver from being perfectly lawful and binding.

There is a line of authority to the effect that sometimesan ostensiblewaiver is really onls an agreement to waive. Robertsv. 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, requiringa considerationto support it just like any other contract or theremust be something to create an estoppel.

To eliminate all doubt as to the finality of the intention of the District Clerk to relinquishhis salary without "strings"and without any Intention to seek recovery thereofupon his return from themilitary service, it is suggested that the Clerk executea commitmentwaiving such salary. Under a commitment to the CommissionersCourt it would seem to make little differencewhether the arrangement be regarded as a waiver of salary or as an executoryagreement to waive. In speaking of the latter alternative the following authority appropriately says:

"Where there is no consideration,a promise or permission

. . . if supportedby action In reliance thereon,may excuseperformance in the future of a condition or an obligationnot due at the time." 16 C.J.S.,page 1056. The following case is In point: "Where insurerunder an automobile liability policy waived its rights to defend an action against insured, the rightwas lost forever and couldnot be reclaimedwithout the consent of insuredwho was thereby caused to obligatehimself for an attorney's fee to an attorney retained by him and otherwise changehis position."Y -

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

(Civ.App.Witt v. UniversalAuto Ins. Co., 1.16 S.W.2d 1095

1938, error dism.). In Attorney General's OpinionNo. O-5102 (1943) it was held that it was solelya matter of personalpropriety for a District Attorney entering the military service to determinewhether he wished to hold office and draw his salary a:-.? that he could legallydo both if he wanted to. However, our Supreme Courthas specificallyheld that the salarymay be waived. Tex. 271, In Cramer v. Sheppard, 140

167 S.W.2d 147 (1942),the Supreme Courthad before it a case concerning the entrance of a District Judge into military service. The Court stated:

II

. . . Judge Dixon did not announcehis resignation as District Judge at the timehe entered the Army,nor did he publicly renounce his claim to the office,but he did specifically waive the compensationallowed b 1 h'l ing in the armed forces.

. . .'I ' (KpEaZ ZIZ) Thus the Supreme Courthas set at rest the question of whether public officialsupon entering themilitary service may effect a waiver of salary. Therefore, the District Clerk's action, as outlined above, would be a "waiver"and not merely an executoryagreement 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 rightwaives that righthe will be precluded thereafter from asserting it or from claiming anythingby reason of it. That is, once a right is waived It Is rrnn?tnrever, and It cannothr:reclaimed or recaptured,and the waiver cannotbe 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 Countymay legallywaive his salary.Honorable HenryWade, 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.