Texas Attorney General Opinion: JM-989 Page: 4 of 5
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Honorable Bob Bullock - Page 4 (JM-989)
P.2d 901 (Wash. 1942) ; see cases cited at 7A Words and
Phrases 300.
Before an officer can be regarded as a de facto
officer, there must be an office that he or she could hold
de jure. City of Dallas v. McDonald, 103 S.W.2d 725 (Tex.
1937). Section 75.002 of the Government Code authorizes the
assignment of a judge who has retired pursuant to section
75.001 of the Government Code to sit on any court of the
state of the same or lesser dignity as that on which the
person sat before retirement. Section 74.057 of the Govern-
ment Code provides that the chief justice may assign judges
(active or retired) of one or more administrative regions
for service in other administrative regions. The presiding
judge of an administrative region is authorized to assign
judges (active or retired) to hold special or regular terms
of court in any county within the administrative district
pursuant to the provisions of section 74.056 of the Govern-
ment Code. A judge assigned under any of the foregoing
provisions "has all the powers of the judge of the court to
which he is assigned." Gov't Code 74.059. Clearly, a
judge serving in another court pursuant to assignment
occupies a position or office that he or she could hold de
jure. While the assignment of a judge to sit in a court may
not in the strictest sense of the term constitute an
appointment to an office, no reason is perceived why the
rationale underlying the law relative to de facto officers
is not applicable.
While we cannot envision every scenario which might
arise where there is a departure from statutory assignment
requirements, we believe that any judge (active, or retired
pursuant to section 75.001 of the Government Code) assigned
under the color of authority to a court existing under the
laws of this state is entitled to be compensated for
services rendered while sitting on that court.
In Preslar the court further held that the 1987
amendment to section 74.053 of the Government Code did not
repeal subsection (b) which provides "[i]f a party to a
civil case files a timely objection to the assignment,
the judge is disqualified to hear the case." While your
scenario does not include this factor it is noted that in
the event of objection by either party the holding in
Preslar would dictate that the judge is disqualified and
would not be entitled to further compensation for services
rendered following such disqualification.p. 5059
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-989, text, December 2, 1988; (https://texashistory.unt.edu/ark:/67531/metapth273427/m1/4/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.