Texas Attorney General Opinion: WW-1238 Page: 3 of 6
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Honorable Henry Wade, page 3 (WW-1238)
In Crutcher v. Johnson County, 79 S.W.2d 932 (Civ.
App. 1935, Judge Alexander set forth the basic reasoning
behind such rule by stating;
"We are also of the opinion that the promise
on the part of the plaintiff to serve as county
commissioner for less than the salary fixed by
the Legislature was contrary to public policy,
and void. It is to be presumed that the Legisla-
ture, in fixing the salary to be paid to those
who filled the various public offices of this
state, did so with due regard to the nature of
the service and the character of the individual
needed to fill the office, and the type of offi-
cer that could be obtained for the salary offered.
If a candidate for public office is permitted to
obtain appointment or election by a Promise to
serve for less than the amount fixed by theiLeg-
islature, or if, after having obtained appoint-
ment or election, he is permitted to more securely
entrench himself in office by such a promise and
thus bring about his re-appointment or re-election,
such practice will ultimately result in the virtual
auctioning off of official positions to the lowest
bidder, and the obtaining of the least efficient
employees to fill the positions. Those capable
of earning the salary fixed by the statute, and
of the type contemplated by the Legislature, will
be eliminated by such competitive bidding, so
that none but the inefficient will be available
for selection to fill the offices. Official
morality and public policy alike prohibit the
undermining of the public service by pepermitting
officers to thus make merchandise of their offi-
cial services. Such promises by public officials
have been condemned as contrary to public policy,
not only by the Supreme Court of this state, but
by the federal courts, and the Courts of Appeals
of almost every other state in the Union. . . "
However, we are of the opinion that the fact situ-
ation herein presented is distinct and distinguished from the
holding in Crutcher v. Johnson County, supra.
A District Clerk who is ordered into the military
service must by necessity be absent from his official duties
as District Clerk, and is, therefore, unable to "serve" in
his official capacity. Although his absence does not create
a vacancy in such office, such absence does create a situation
which prevents him from performing the duties of his office.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: WW-1238, text, January 10, 1962; (https://texashistory.unt.edu/ark:/67531/metapth267851/m1/3/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.