THEA~TORNEYGENERAL 

OF -WAS 

WVILL WILSON 

A-RNEYGENERAL 

AUSTIN aa.T~xas 

May 22, 1961 

Honorable W. G. Walley, Jr. 

Acting Criminal District Attorney 

Jefferson County 

Beaumont, Texas 

Opinion NO. ~~-1064 

Re: Emoluments of the office of 

Criminal District Attorney 

while the elected Criminal 

District Attorney Is suspended from office pending removal 

proceedings, and related quesDear Mr. tlons. 

You 

tlons: 

"1. Whether or not, during the time a 

Criminal District Attorney is suspended from 

office, and prior to his removal from that 

office, he is entitled to the financial emoluments of that office until such time as he may 

be removed? 

Walley: 

have requested an opinion on the following ques- 

"2. Should the answer to the first question be In the affirmative, then should payments of such emoluments be suspended and paid 

over to him at the actual tlme'of his removal, 

If he should be eventually removed or should he 

be paid as was the custom In the past? 

w3. In the event of a temporary suspension 

of a constable from office, and prior to his removal from that office, Is he entitled to the 

financial emoluments of that office until such 

time as he may be removed? 

=4. Should the answer to the third question be in the affirmative, then should payments 

of such emoluments be suspended and paid over to 
Honorable W. G. Walley, Jr., page 2 (~~-1064) 

him at the actual time of his removal, If he 

should be eventually removed or should he be 

paid as was the custom in the past. 

“5. Does the Commissioners Court have 

the authority to pay the emoluments of office 

to the person discharging the duties of the 

Criminal District Attorneys office during the 

time that such elected Criminal District Attorney is suspended? 

“6. Does the Commissioners Court have the 

authority to pay the emoluments of office to 

the person discharging the duty of a Constable 

during the time that such elected Constable Is 

suspended?" 

When a person undertakes to discharge the duties of any 

public office In Texas he exercises those duties in one of 

three possible classifications, to-wit: (a) officer de jure, 

(b) officer de facto, or, (c) a mere intruder in the office. 

A de jure officer is entitled to the emoluments of that 

office so long as the individual is a de jure officer. Board 

v. City of Decatur, 64 Tex. 7 (1885); City of Houston v. 

Estes, 79 S W 846 (Clv;App. 1904 error ref ) 34 T 

-13, Public Officers, Sec. 106. Therefocef 

ex.Jur. 

we believe 

that the answer to your questions is dependent on whether an 

Individual suspended from office by a court of competent jurisdiction, pending removal proceedings, remains a de jure officer 

even though he is no longer performing the duties of that office. Your request, therefore, Is answered by the principles 

of law announced in Chownlng v. Boger, 2 Wlll.Tex.Clv. Cases 

650 (1885). In that case the regular elected and qualified 

sheriff had been temporarily suspended from office by the judge 

of the district court and one A. T. Boger had been appointed 

to perform the duties of the office of sheriff pending removal 

proceedings. Subsequent to the suspension and prior to the 

hearing on the removal proceedings, the duly elected sheriff 

resigned from office and the commissioners' court, believing 

that such resignation created a vacancy In the office, appointed one H. Chownlng sheriff. The court held that Boger, 

by virtue of the appolntment, was sheriff de facto and the 

elected sheriff, prior to resignation, was the de jure offlcer and entitled to the emoluments of the office prior to 

resignation and that Chownlng, after his appointment was the 

de jure sheriff and was then entltled to such emoluments. 
-. 

Honorable W. G. Walley, Jr., page 3 (w-1064) 

You are therefore advised In answer to Questions Nos. 

1, 3 and 6 that duly elected officers suspended from office 

by a court of competent jurisdiction pending removal proceedings are entitled to their statutory compensation during 

the time of suspension prior to hearlng on removal proceedings. 

Since It is to the Interest of the public that the duties 

of an office be performed, de facto officers are entitled to 

compensation of services rendered. 

348 (1886). 

McAllen v. Rhodes, 65 Tex. 

It Is our opinion that a de facto officer 1s entitled to receive the same compensation as a de jure officer 

In the same position. Attorney General's Opinion 0-31.58 (1943) 

and authorities cited therein. 

Summarizing the foregoing, and answering your questions 

categorically, you are advised: 

(1) During the time a Criminal District Attorney is suspended from office and prior to his removal from that office, 

he Is entitled to the financial emoluments of that office until 

such time as he may be removed. 

(2) Payments of such emoluments should not be suspended 

but should be paid to him In regular Installments. 

(3) A constable temporarily suspended from office Is entitled to the financial emoluments of that office until such 

time as he may be removed. 

(4) Payments of such emoluments should not be suspended 

but should be paid to him In regular installments. 

(5) The person discharging the duties of the Criminal Distrlct Attorney's office during the time that the elected Criminal 

District Attorney Is suspended 1s entitled to receive the same 

compensation as the elected Criminal District Attorney during 

the period of time he discharges the duties of the office of 

Criminal District Attorney. 

(6) The person discharging the duties of Constable during 

the time the elected Constable is suspended Is entitled to receive the same compensation as the elected Constable during the 

time he discharges the duties of the office of Constable. 

SUMMARY 

Individuals duly suspended frorr office pending removal proceedings will remain de jure 
Honorable W. G. Walley, Jr., page 4 (~-lo641 

officers until removal and are entitled 

to their statutory compensation during such 

time. 

Individuals duly appointed to discharge 

the duties of the office during the suspension period are entitled to the same compensation as the elected officer to the 

position during the time they actually dlscharge the duties of the office. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JR:ms Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Riley Eugene Fletcher 

Elmer McVey 

Gordon C. Cass 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Morgan Nesbitt