Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
l?ebrwryx,4, 1939 \ Ron. R;S. Wyche,
Gregg County
Langview, Texas
Dear rs. Nyche:
ing questlon:
Revised Clvfl Statutes reads thousand (8 000) pop- ulation according to the eaedlng sederal Deputy and no Census mag.~appoint one (1 r
more; and each Justioe Preoinot ha~f.ng a oity tom of eight thousand (8,000) and less than fort& thousand (40,000) population ao- cording to the preoedlng Federal Celwaa pay appoint two (2) Deputies and no more; and in 'i . . . ,,. eaoh Justioe Precinot having a town or city *2 Hon. R.S. Ilyahe,
of forty thousand'(aO,OOO) population or
more according to the preceding Federal Cen-.
sus nay appoint five (5) DoDuties and~no more,
and each and every instanoe said Deputy Con-
stables shall qualify as required or Deputy
SlltXiffS.
Section 2. When the Constable ln eaoh and every instance named and desoribed in the
preaeding section of this Aat shall desire
to make appointment of a Deputy or Deputies,
as to owe may be, said Constable shall first
make written applioation to the Cammissioners*
Court of his County.shovrlngthat it Is neoes-
sary for suoh Constable to have.the Deputy or
Deputies requested in order to properly handle
the business of his offloe originating in the
Preoinot in whioh suah Constable has.been s-
leoted, giving the name of eaoh proposed ap-
pointee; and If the Commissioners* Court shall
Bind that the Constable is in need of the Dep-
uty Deputies requested to handle the busl-
ness originating In his Precinct, then and In
that event, and in that event only the Com-
missioners' Court shall approve an4 aonfirm
the appointment of the Deputy or Deputies pro-
vided by this Aot.
Section 3. "Any person who serves as
a Deputy Bonstable without the provisions here-
of hnving been aomplled with relative to his
appofntment or any Constable who issues a Dep-
utyship without the oonsent and approval of
the Commlssloners* Court shall be fined not
less than V5.ft.y Dollars ($50.00 nor more than
One Thousand Dollars ($liOOO.OO 1 .* ,
Amerlcnn Law Reports, Vol. 93, p. 269, states that :
uSome authorities have expressly held I- *3 .” ,_I’ ;* ,,,‘. .L. 67 d/ 223 d/‘/i ,’
,.’ J /</I c’) ./ ,,+ -./ ,’ (4’~ ?iycho, Februery%, lQ39, ?aCe 3 ' Eon. X.3.
,+--
that tho fact the& is no de jure officer not ohnnge the genernl rule that a de
does ^^. . _ . facto orrxer cannot rooover trie emoluments
of the office so as to onable him to rocov-
er for his services, ctt least whore he knows
that his z-if&. to office is disputed."
Citing Geams vs ‘;lest Yrankfust, 233 Ill. 479; Eubanks vs Xontgomery County, 105 5.X. 418. Also citing many other authorities whioh we do not deem necessargto mention here.
The mere assumption of the. office by performanoe of one of even several ants ap-
propriate to it without any recognition by the appointive power may not be ntifioient
to oonstitute one a de facto officer and it
has been held that (I person whose only olaim to orfice Is under appointment whioh.ls void
and not merely irregular and fnformsl Is not
a de facto offioer, but a mere intruder."
Tar. Jnr., Vol. 34, p. 617, Sso.~lS3. Bin-
count VE Parker, 27 Ter. 558; ldurray vs State,
48 Grim. Reports, 219, 87 S.ti. 349.
In view of tho foregoing authorities, you'sre respeutfully adviood that it is the opinion of this de-
partment that the evident purpose of Article 6879a is to prohibit any psrson from claiming to be a de faoto deputy constable. The Legislature must have had In mind an ex- isting evi1~hen~thi.s law, containing penal features, 17~ passed. Thorofore,,fncts, which might ordinarily consti- tute one a de facto ofricer, have no application hare
and tho deputy mentioned in yourletter is not a de facto offiaor and the CommIssionera* Court hae no autborlty to pay him for his service upon approval of his ola5.m by the autitor.
Trusting that the foregoing answers your in- *4 Yours very truly /
A.i'TOIU~ G'3XJ2RAL CF T?X,ZS