## THEA~TORNEYGENERAL OF -WAS

WVILL WILSON A-RNEYGENERAL AUSTIN aa.T~xas

May 22, 1961

HonorableW. G. Walley, Jr. Acting CriminalDistrictAttorney Jefferson County Beaumont, Texas OpinionNO. ~~-1064
Re: Emoluments of the office of Criminal DistrictAttorney while the electedCriminal District Attorney Is suspended from office pending removal proceedings,and related questlons. Dear Mr. You tlons: "1. Whether or not, during the time a CriminalDistrictAttorney 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 questionbe In the affirmative, then shouldpayments of such emolumentsbe suspendedand paid over to him at the actual tlme'ofhis removal, If he shouldbe eventually removed or shouldhe 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 emolumentsof that office until such time as he may be removed? =4. Should the answer to the third questionbe in the affirmative, then shouldpayments of such emolumentsbe suspendedand paid over toHonorableW. G. Walley, Jr., page 2 (~~-1064)

him at the actual time of his removal, If he shouldbe eventually removed or shouldhe be paid as was the custom in the past.

“5. Does the CommissionersCourt have the authority to pay the emoluments of office to the person discharging the duties of the CriminalDistrict Attorneys office during the time that such elected Criminal DistrictAttorney is suspended?

“6. Does the CommissionersCourt 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 threepossible 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 emolumentsof 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 toyour questions is dependent on whether an Individual suspended from office by a court of competent jurisdiction, pending removalproceedings,remains a de jure officer even thoughhe is no longerperforming the duties of that office. Your request, therefore, Is answeredby the principles of law announced in Chownlng v. Boger, 2 Wlll.Tex.Clv. Cases 650 (1885). In that case the regular elected and qualified sheriffhad been temporarily suspended from officeby the judge of the district court and one A. T. Boger had been appointed to perform the duties of the office of sheriffpending removal proceedings. Subsequent to the suspensionand prior to the hearing on the removalproceedings, 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 sheriffde facto and the elected sheriff,prior to resignation,was the de jure offlcer and entitled to the emolumentsof the office prior to resignation and that Chownlng, after his appointmentwas the de jure sheriff and was then entltled to such emoluments.-.

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

You are thereforeadvised In answer to QuestionsNos. 1, 3 and 6 that duly elected officers suspended from office by a court of competent jurisdictionpending removalproceedings are entitled to their statutorycompensationduring the time of suspensionprior to hearlng on removalproceedings. Since It is to the Interest of thepublic that the duties of an office be performed,de facto officers are entitled to compensationof services rendered. 348 (1886). McAllen v. Rhodes, 65 Tex.

It Is our opinion that a de facto officer 1s entitled to receive the same compensationas a de jure officer In the same position. Attorney General's Opinion 0-31.58(1943) and authorities cited therein. Summarizing the foregoing,and answeringyour questions categorically,you are advised: (1) During the time a CriminalDistrictAttorney is suspended from office and prior to his removal from that office, he Is entitled to the financial emolumentsof that office until such time as he may be removed. (2) Paymentsof such emoluments shouldnot be suspended but shouldbe paid to him In regular Installments. (3) A constable temporarily suspended from office Is entitled to the financial emolumentsof that office until such time as he may be removed. (4) Paymentsof such emoluments shouldnot be suspended but shouldbe 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 compensationas 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 compensationas the elected Constableduring the time he discharges the duties of the office of Constable. SUMMARY Individualsduly suspended frorrofficepending removalproceedingswill remain de jureHonorable W. G. Walley, Jr., page 4 (~-lo641

officersuntil removal and are entitled to their statutory compensationduring such time. Individualsduly appointed to discharge the duties of the office during the suspensionperiod are entitled to the same compensationas the elected officer to the position during the time they actuallydlscharge the duties of the office.

Yours very truly,
WILL WILSON Attorney General of Texas

Assistant JR:ms APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Riley Eugene Fletcher Elmer McVey Gordon C. Cass REVIEWED FOR THE ATTORNEY GENERAL By: Morgan Nesbitt