Can Texas pay a visiting judge who was assigned to a case without all the proper legal formalities?

Texas AG Opinion JM-989: Can the State Pay an Improperly Assigned Visiting Judge?

Plain-English summary

Texas courts often bring in visiting judges, sometimes retired judges, to cover cases when the regular judge is unavailable. Those assignments have to follow specific statutory steps. The Comptroller, who cuts the checks, ran into a problem: what happens when a visiting judge presides over a case but the paperwork or procedure for assigning that judge was not done correctly? Can the state still pay the judge for the work? The question was sharpened by a 1988 Texas Supreme Court decision, State v. Preslar, which held that the Chief Justice could not assign a retired judge to sit in the administrative region where that judge lived, except in the narrow situations listed in the statute.

The Attorney General's answer rested on an old and practical doctrine: the de facto officer rule. The idea is that when someone holds an office under "color of authority," meaning there was an appointment or assignment that at least looked valid, their official acts count, and they can be paid for the work they actually did. The doctrine exists to protect two groups: the person who took the job in good faith reliance on the appointment, and the public who relied on that person's authority. A de facto officer can recover compensation for services rendered, but cannot be paid for services never performed.

Applying that here, the Attorney General reasoned that a visiting judge assignment fits the doctrine. There is a real office a judge could hold, and the various assignment statutes (covering active and retired judges assigned within or across administrative regions) give the whole arrangement color of authority even when a formality is skipped. A judge assigned under any of those provisions has all the powers of the court to which they are assigned. So an assigned judge, active or retired, who sits under color of authority is entitled to be paid for the work done on that court.

There is one important exception, and it comes straight out of Preslar. Under section 74.053(b), if a party to a civil case files a timely objection to the assignment, the judge is disqualified from hearing that case. The 1987 amendment to section 74.053 did not repeal that subsection. So while the Comptroller can pay the visiting judge for services rendered up to that point, once a party objects and the judge is disqualified, the judge is not entitled to compensation for any services rendered after the disqualification.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Government Code provisions on assigning active and retired judges (chapter 74, subchapter C, and chapter 75) have been amended repeatedly since 1988, including changes to the objection procedure in section 74.053. The de facto officer doctrine remains part of Texas law, but the specific assignment and objection rules described here reflect the statutes as they stood in 1988. Anyone dealing with a visiting-judge assignment or compensation question today should consult the current Government Code and current case law rather than relying on the section numbers here.

Who this opinion affected (as of 1988)

The Comptroller of Public Accounts: The opinion told the Comptroller he could lawfully pay a visiting judge assigned under color of authority for services rendered, and identified the point (a party's objection and resulting disqualification) after which compensation was not owed.

Visiting and retired judges: The opinion concluded that a judge assigned under color of authority is entitled to be paid for work actually done, even where an assignment formality was missed, subject to disqualification on a party's objection.

Parties in cases before an assigned judge: The opinion confirmed that a timely objection to the assignment in a civil case disqualifies the judge under section 74.053(b) going forward.

Common questions

Can Texas pay a visiting judge whose assignment missed some legal formality?
In this opinion the Attorney General concluded that the Comptroller may pay a visiting judge assigned under color of authority for services actually rendered, under the de facto officer doctrine.

What is the de facto officer doctrine?
It is a rule that an officer who holds a position under color of authority, an appointment or assignment that appears valid, performs valid official acts and may be compensated for services rendered, to protect both the officer and the public who relied on the appointment.

Is there a point where the judge can no longer be paid?
Yes. Under section 74.053(b), if a party to a civil case files a timely objection to the assignment, the judge is disqualified and is not entitled to compensation for services rendered after that disqualification.

Does this cover retired judges?
Yes, it covers a judge who is active or retired under section 75.001 of the Government Code and assigned under color of authority to a Texas court.

Background and statutory framework

The question followed State v. Preslar, 751 S.W.2d 477 (Tex. 1988), in which the Texas Supreme Court held that the Chief Justice lacks authority to assign a retired judge to sit as a visiting judge within the administrative region of his residence absent the special circumstances enumerated in section 74.049 of the Government Code (death or resignation of the presiding judge, an absence or incapacity of the presiding judge, or the presiding judge's disqualification in a particular matter). Preslar arose in an original mandamus proceeding and did not itself decide the question of paying the visiting judge for services rendered.

Under the de facto officer doctrine, a de facto officer may recover compensation for services rendered, Harris County v. Hunt, 388 S.W.2d 459, 465 (Tex. Civ. App. - Houston 1965, no writ), but may not recover compensation for services not rendered, Glenn v. Town of Trenton, 256 S.W. 631 (Tex. Civ. App. - Texarkana 1923, no writ). The doctrine was created as a matter of public policy to protect both an officer appointed by some power having color of authority and the public relying on the validity of that appointment. French v. State, 572 S.W.2d 934, 935 (Tex. Crim. App. 1978). Attorney General Opinion JM-874 (1988) summarized the doctrine: a de facto officer is one who by his acts has the appearance of holding the office he has assumed but who does not validly hold it (Germany v. Pope, 222 S.W.2d 172, 176 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.); City of Christine v. Johnson, 255 S.W. 629 (Tex. Civ. App. - San Antonio 1923, no writ)); the designation may attach to one who holds office under color of an appointment later invalidated because the appointee was ineligible (Norton v. Shelby County, 118 U.S. 425, 446 (1886)); acts performed by a de facto officer under color of office are valid (Norton, 118 U.S. at 441-42); and such an officer's acts are as binding as those of an officer de jure (Vick v. City of Waco, 614 S.W.2d 861 (Tex. Civ. App. - Waco 1981, writ ref'd n.r.e.); Shriber v. Culberson, 31 S.W.2d 659, 661 (Tex. Civ. App. - Waco 1930, no writ)).

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 assignment of a judge who has retired under section 75.001 to sit on any court of the same or lesser dignity as the one on which the person sat before retirement; section 74.057 lets the Chief Justice assign active or retired judges of one or more administrative regions for service in other regions; and section 74.056 lets the presiding judge of an administrative region assign active or retired judges to hold terms of court in any county within the district. A judge assigned under any of these provisions "has all the powers of the judge of the court to which he is assigned." Gov't Code § 74.059. A judge serving in another court by assignment therefore occupies a position that could be held de jure, and although an assignment may not strictly be an appointment to office, no reason appears why the de facto officer rationale would not apply.

The Attorney General concluded that any judge (active, or retired under section 75.001) assigned under color of authority to a court existing under Texas law is entitled to be compensated for services rendered while sitting on that court. Preslar further held that the 1987 amendment to section 74.053 of the Government Code did not repeal subsection (b), which provides that if a party to a civil case files a timely objection to the assignment, the judge is disqualified to hear the case. Accordingly, in the event of an objection by either party, the judge is disqualified and would not be entitled to further compensation for services rendered following the disqualification.

Citations

Statutory authority:

• Government Code § 74.049 (Chief Justice assignments within an administrative region)
• Government Code § 74.053(b) (disqualification on a party's timely objection)
• Government Code § 74.056 (presiding judge assignments within the district)
• Government Code § 74.057 (assignments across administrative regions)
• Government Code § 74.059 (assigned judge has all the powers of the court)
• Government Code § 75.001 (judicial retirement)
• Government Code § 75.002 (assignment of a retired judge)

Cases:

• State v. Preslar, 751 S.W.2d 477 (Tex. 1988)
• Harris County v. Hunt, 388 S.W.2d 459 (Tex. Civ. App. - Houston 1965, no writ)
• Glenn v. Town of Trenton, 256 S.W. 631 (Tex. Civ. App. - Texarkana 1923, no writ)
• French v. State, 572 S.W.2d 934 (Tex. Crim. App. 1978)
• Germany v. Pope, 222 S.W.2d 172 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.)
• City of Christine v. Johnson, 255 S.W. 629 (Tex. Civ. App. - San Antonio 1923, no writ)
• Norton v. Shelby County, 118 U.S. 425 (1886)
• Vick v. City of Waco, 614 S.W.2d 861 (Tex. Civ. App. - Waco 1981, writ ref'd n.r.e.)
• Shriber v. Culberson, 31 S.W.2d 659 (Tex. Civ. App. - Waco 1930, no writ)
• City of Dallas v. McDonald, 103 S.W.2d 725 (Tex. 1937)

Related opinions:

• Attorney General Opinion JM-874 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-989
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0989.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

December 2, 1988

Honorable Bob Bullock
Comptroller of Public Accounts
L.B.J. State Office Building
Austin, Texas 78774

Opinion No. JM-989

Re: Whether the Comptroller may pay the salary of a visiting judge who has been improperly appointed (RQ-1494)

Dear Mr. Bullock:

You ask whether the Comptroller of Public Accounts may lawfully pay the salary of a visiting judge who was appointed to preside over a case without all of the statutory formalities for that appointment having been fulfilled.

Your question appears to have been prompted by a recent opinion of the Supreme Court of Texas in State v. Preslar, 751 S.W.2d 477 (Tex. 1988). Insofar as is pertinent to your inquiry, Preslar held that the Chief Justice of the Supreme Court of Texas lacks the authority to assign a retired judge to sit as a visiting judge within the administrative region of his residence absent the special circumstances enumerated in section 74.049 of the Government Code.1

In Preslar, the question of payment of the visiting judge for services rendered, if any, was not an issue. The question before the court arose in an original mandamus proceeding challenging the authority of the Chief Justice of the Supreme Court to assign a retired judge to sit as a visiting judge within the administrative region where he resides.

A de facto officer may recover compensation for services rendered. Harris County v. Hunt, 388 S.W.2d 459, 465 (Tex. Civ. App. - Houston 1965, no writ); 60 Tex. Jur. 3d Public Officers and Employees § 257. On the other hand, a de facto officer may not recover compensation for services not rendered. Glenn v. Town of Trenton, 256 S.W. 631 (Tex. Civ. App. - Texarkana 1923, no writ).

While you do not state what statutory formalities were omitted in the appointment of the visiting judge, we believe the guidelines set forth in the following authorities will be of assistance to you in determining whether the visiting judge has served in a de facto posture and is entitled to be paid for services rendered.

The policy underlying the doctrine of de facto officers was stated in French v. State, 572 S.W.2d 934, 935 (Tex. Crim. App. 1978, no pet.):

The doctrine of officers de facto was created as a matter of public policy to protect both an officer appointed by some power having "color" of authority to appoint him and the public relying on the validity of that appointment.

In Attorney General Opinion JM-874 (1988) the matter of the validity of the actions taken by a commissioner during the tenure of an appointee member subsequently found ineligible was addressed, as follows:

A de facto officer is one who, by his acts, has the appearance of holding the office he has assumed, but who in fact does not validly hold the office. Germany v. Pope, 222 S.W.2d 172, 176 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.); City of Christine v. Johnson, 255 S.W. 629 (Tex. Civ. App. - San Antonio 1923, no writ). The designation of "de facto officer" may attach to one who holds office under color of an appointment that is subsequently invalidated on the grounds that the appointee was ineligible. Norton v. Shelby County, 118 U.S. 425, 446 (1886); Ex parte Tracey, 93 S.W. 538, 542 (Tex. Crim. App. 1905). Acts performed by a de facto officer under color of office are considered valid. Norton v. Shelby County, 118 U.S. at 441-42; Germany v. Pope, 222 S.W.2d at 176. See generally 39 Tex. Jur. 2d Municipal Corporations § 144 and cases cited therein; 67 C.J.S. Officers §§ 269-70.

Here, as in Vick v. City of Waco, [614 S.W.2d 861, Tex. Civ. App. - Waco 1981, writ ref'd n.r.e.] the challenged officers were acting under color of authority. Thus, each was a de facto officer, and "as such his acts are as binding as though he was an officer de jure."2 Shriber v. Culberson, 31 S.W.2d 659, 661 (Tex. Civ. App. - Waco 1930, no writ).

Attorney General Opinion JM-874 (1988) at 2, 3.

"Color of authority" as applied to de facto officers "is authority derived from an election or appointment, . . ." [___] P.2d 901 (Wash. 1942); see cases cited at 7A Words and Phrases 300.

[Footnote reproduced from the opinion: De jure is defined in Black's Law Dictionary 382 (5th ed. 1979) as: "Descriptive of a condition in which there has been total compliance with all requirements of law. Of right; legitimate; lawful; by right and just title. In this sense it is the contrary of de facto."]

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 Government 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 Government 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.

1. Section 74.049 provides: The chief justice may make assignments within an administrative region and perform the other duties of a presiding judge in the following situations: (1) on the death or resignation of the presiding judge and until a successor presiding judge is appointed; (2) on notification to the chief justice by the presiding judge or other appropriate source that an absence, disabling illness, or other incapacity of the presiding judge prevents the judge from performing his official duties for a period of time and until the presiding judge is again able to perform the duties; and (3) in a particular matter in which the presiding judge disqualifies himself from performing the duties of presiding judge in that matter. (Emphasis added.)

SUMMARY

The Comptroller of Public Accounts may lawfully pay the salary of a visiting 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 for services rendered while sitting on the court to which he or she has served pursuant to such assignment. In the event either party to a civil case files an objection to the assignment, the judge is disqualified under section 74.053(b) of the Government Code and is not entitled to compensation for any services that may be rendered following disqualification.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General