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RE: [tips_and_tricks] de facto officer doctrine - texas

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  • Frank Taucher
    yep ARTICLE VI, SECTION 3 The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial
    Message 1 of 3 , Jun 3, 2003
    • 0 Attachment
      yep
       
       
      ARTICLE VI, SECTION 3
       
      The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
       

       
      Oklahoma
        Oklahoma Constitution
              Article Oath Of Office
              Section Article 15 section 1 - Officers required to take oath or affirmation - Form.
      Cite as: O.S. §, __ __


      § 1. Officers required to take oath or affirmation - Form.

      All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation:

      "I, ........., do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States, and the Constitution of the State of Oklahoma, and that I will not, knowingly, receive, directly or indirectly, any money or other valuable thing, for the performance or nonperformance of any act or duty pertaining to my office, other than the compensation allowed by law; I further swear (or affirm) that I will faithfully discharge my duties as ......... to the best of my ability."

      The Legislature may prescribe further oaths or affirmations.


       Oklahoma
        Oklahoma Constitution
              Article Oath Of Office
              Section Article 15 section 2 - Administration and filing of oath - Refusal to take - False swearing.
      Cite as: O.S. §, __ __


      § 2. Administration and filing of oath - Refusal to take - False swearing.

      The foregoing oath shall be administered by some person authorized to administer oaths, and in the case of State officers and judges of the Supreme Court, shall be filed in the office of the Secretary of State, and in case of other judicial and county officers, in the office of the clerk of the county in which the same is taken; any person refusing to take said oath, or affirmation, shall forfeit his office, and any person who shall have been convicted of having sworn or affirmed falsely, or having violated said oath, or affirmation, shall be guilty of perjury, and shall be disqualified from holding any office of trust or profit within the State. The oath to members of the Senate and House of Representatives shall be administered in the hall of the house to which the members shall have been elected, by one of the judges of the Supreme Court, or in case no such judge is present, then by any person authorized to administer oaths.


      -----Original Message-----
      From: Bill Bauer [mailto:bbauer1@...]
      Sent: Monday, June 02, 2003 06:04 PM
      To: tips_and_tricks@yahoogroups.com
      Subject: Re: [tips_and_tricks] de facto officer doctrine - texas

      Sounds good Frank but does the same law exist in Oklahoma today?
      Must Oklahoma City officers or County sheriff's deputies and judges in munincipal courts have such an oath on file?
      Bill Bauer

      Frank Taucher wrote:
       
      i don't know how these guys could have missed the prieto bail bonds case which is a texas case
       
      the key question in most patriot matters is whether or not the public servant had authority for the actions taken
       
      this question usually hinges on whether the officer is qualified (oath, bond, and commission/certificate of appointment/certificate of election)
       
      if not qualified, then the question becomes whether or not the actions taken are void ab initio for lack of authority
       
      the question of a quo warranto attack against the officer's bona fides is different than the question of whether the actions taken are void ab initio
       
      the record from the first point of contact must record this challenge to the pretend officer's bona fides and the officer's authority must appear in the record in order to preserve the void claim
       
      if not challenged, if not made to appear, and if not preserved in the record, the claim is waived and the error is perfected as harmless
       
      in other words, upon first contact, wherever and whenever, the court of original jurisdiction is in session, the stage lights are on, the concurrent record of the administrative proceeding is open, and you're on center stage with the lights shining brightly -------
       
      ------- now, take control and create your record
       
      it's what everyone else downstream will have to review, and review, and review
       
      regards
      ft
       
       
       
       

      DE FACTO OFFICER DOCTRINE

      by

      VALIANT LIBERTY

      Copyright 2002

      Permission to copy and redistribute is granted by the author

                  This dissertation will explore Texas law relating to the de facto and de jure varieties of public officers.  If the reader lives in a state other that Texas, he should research the relevant statutes and case law on this subject for his respective state.  If he wishes to test this doctrine and is unable, unwilling, or just too lazy to research his own state’s laws concerning the de facto officer doctrine, he might consider getting to Texas as fast as he can.  As always, the authors strongly recommend that anyone that might consider using the information contained herein do their own research to confirm everything stated here.  VALIANT LIBERTY is not an attorney and does not give advice, legal or otherwise.  The following information and research is provided by semi-literate amateurs and is not intended as a course of action.

      OFFICER DE FACTO DEFINED

                  There are three types of public officers, de jure, de facto, and usurpers.  A de jure officer is one who one who has been in total compliance with all requirements of law and holds title to the office by right.  See Black’s Law Dict., 6th ed.  Texas law recognizes a distinction between holding an office by title and holding it by sufferance.  Bickford v. Cocke, 54 Tex. 482 (1881) and see: Tom v. Klepper, 172 SW 721 (1915).  A de facto officer is one who, while in actual possession of the office, is not holding such in a manner prescribed by law.  See: Black’s 6th.  A de facto officer’s authority cannot be collaterally challenged and his acts generally have the same force and effect as a de jure officer.  An usurper of a public office is one who either intrudes into a vacant office or ousts the incumbent without any color of title, or is one who is attempting to fill a pretended office not created by law.  See: Black’s 6th and Norton v. Shelby Co, infra.  A good definition of a de facto officer is found in Texas Jurisprudence 3d, Vol. 60, Sec. 344, at page 583:

      A public official becomes an officer de facto by exercising his or her duties:

      (1)  without a known appointment or election, but under circumstances of reputation or acquiescence that were calculated to induce people, without inquiry, to submit to or invoke his or her action supposing him or her to be the officer he or she assumed to be.

      (2)  under color of a known and valid appointment or election, but where the officer fails to conform to some precedent, requirement, or condition, as to take and oath, give a bond, or the like:

      (3)  under color of a known election or appointment, void because the officer was not eligible, because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, the ineligibility, want of power, or defect being unknown to the public; or

      (4)  under color of an election or an appointment by, or pursuant to, a public unconstitutional law, before the law is so adjudged.

      THE OFFICE MUST HAVE LEGAL EXISTENCE

                  The law requires public officials, both appointed and elected, state and federal, to be properly qualified for office before the officer enters the office and the office must exist as a matter of law.  It has been held that: “A de facto body cannot create a de jure officer.”  von Nieda v. Bennett, 106 ALR 1320, 117 NFL 231, 187 A 629.  If the officer is not qualified under the law, the officer is an officer de facto.  The law requires that the office legally exist.  “There can be no incumbent de facto of an office if there be no office to fill.”  Norton v. Shelby County, (1886) 118 U.S. 425, 441 , 6 S. Ct. 1121.  The court held:

      But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county.  This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence.  Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the supreme court of the state.  Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers.  The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment of election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby.  Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices, and in apparent possession of their powers and functions.  For the good order and peace of society their authority is to be respected and obeyed until, in some regular mode prescribed by law, their title is investigated and determined.  It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question.  But the idea of an officer implies the existence of an office which he holds.  It would be a misapplication of terms to call one an 'officer' who holds no office, and a public office can exist only by force of law.  This seems to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject but for the earnest contention of plaintiff's counsel that such existence is not essential, and that it is sufficient if the office be provided for by any legislative enactment, however invalid.  Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent.  That position, although not stated in this broad form, amounts to nothing else.  It is difficult to meet it by any argument beyond this statement: An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby Co., supra.

                  The Texas courts have recognized this common sense principle just as the U.S. Supreme court has:

      The position of policeman or patrolman was unknown to the common law, and, being a creation of municipal governments by ordinance, the establishment of such office in a valid manner must be shown to entitle a patrolman to recover against a city for the salary of the officer....Under San Antonio charter, providing that the city council shall have power, by ordinance, to establish a police force, and to create any office deemed necessary, the position of policeman must be created by ordinance, and neither a resolution approving the appointment of one as policeman, nor acquiescence by the city in his appointment and payment of his salary, will make him the legal occupant of that position....Where the city council of San Antonio, which was authorized to provide for a police department by ordinance, adopted an ordinance declaring that the police force should consist or one chief marshal and such patrolmen as the mayor and city council might deem necessary, the council cannot, by resolution, create the office of patrolman; the ordinance not specifying the number and not creating the office.  City of San Antonio v. Coultress (1914) 169 SW 917 at headnotes 3, 4, 5. 

      The selection of a de jure deputy marshal results only when the office is in being, one qualified to hold the office is properly appointed or elected, and the selection is approved as required by law and without a compliance with the first requirement, compliance with the other two is unimportant.  Miller v. City of Alamo Heights (1955) 282 SW2d 264, 265.

      By terms of this statute [VATS 998a] there can be no doubt that an organized police reserve unit with authority to make arrest in the City of Dallas can only be legally established by ordinance or other action of the City Counsel in compliance with the existing charter....Therefore, in absence of action by City Council the Dallas Police Reserve unit has not been established as a de jure “organized  police reserve or auxiliary unit with the authority to make arrest.”...There being no office de jure, plaintiffs were not officers de facto in the sense that they could recover emoluments for unexpired terms.  There could be no unexpired terms of offices having no legal existence.  Jones v. State Board of Trustees of Emp. Retire. Sys., (1974) 505 SW2d 361, at 365.

                  It could be very interesting to investigate whether or not the city counsel for your local CITY OF CORRUPTION has properly enacted ordinances which create the office for each and every police officer, dog catcher, code enforcement officer, and etc.  The odds that they did not are probably exponentially better than the odds of winning the lottery.  As in Norton, supra, if there is no office properly created by constitution, statute or ordinance, there can be no officer, not even a de facto officer and one purporting to hold the office is a mere usurper.  There is an organization out in West Texas called the “Trans-Pecos Drug Task Force” that is made up of officers of various sheriff’s departments, city police departments, and other law enforcement agencies.  Who created them?  Can a man holding the office of deputy sheriff also hold an office in the “Trans-Pecos Drug Task Force?”  Are they just “good ole boys” out on the Interstate on their days off shaking down the unlucky and unwary travelers looking to gratify their sociopathic[1]                Psychopathic personality – A type of personality characterized by amoral and antisocial behavior, lack of ability to establish meaningful personal relationships, extreme egocentricity, etc  The Random House College Dictionary, Rev.Ed, 1974. personalties and make an extra buck at he same time?  Can a deputy sheriff hold two offices?  The latter two of these questions were answered by the Texas Court of Criminal Appeals in 1944 when it held that: “A city policeman and a deputy sheriff are “officers” within the meaning of the constitutional provision [Art. XVI, Sec. 30a] that no person shall hold or exercise at the same time more than one civil office of emolument.  A city policeman receiving compensation for services rendered as such could not under the Constitution, at the same time be deputy sheriff de jure or de facto  Irwin v. State, 177 SW2d 970.  As to the former question, who knows?

                  When investigating whether or not the office of your local police officer exists, one should first look to the City Charter, which can usually be obtained at the office of the City Secretary.  The City Charter for the City of Midland, contains two sections relating to police officers and the police department.

      The City of Midland shall have power by ordinance to establish and maintain a police department and to prescribe the duties of the members of said department, and regulate their conduct and fix their salaries or fees of office, or both.  The head of the police department shall be know as ‘chief of police,’ an the other members thereof shall be know as ‘policemen’; all of whom shall be appointed by the city council.  Article III, Sec. 24, City of Midland Charter.

      All officers of the city, whether elective or appointive, shall qualify by taking the oath prescribed by the constitution of this state and by executing such bond as may be required under the provisions of this Charter and the ordinances and resolutions of the city.”  Article IV, Sec. 8, City of Midland Charter.

                  Your authors are here to tell you that since those provisions for the establishment of the police department and office of “policeman” were first discovered a few years ago, that not one single certificate of appointment for a single “policemen” has been found.  Neither has any ordinance nor other official act of the city council can bee found that created a police department.  At the insistence of a couple of ‘nuts’ that believe that the police are not above the law, the hours and hours that have been spent by two different city secretaries scouring the archives have proved to be futile.  The legal existence of the ordinance or resolution creating the City of Midland Police Department is as elusive as a unicorn, yet the actual existence of the police department and its officers is evident enough.

      THE OFFICE IS CONCLUSIVELY PRESUMED TO EXIST

                  The foregoing seems straight forward enough on its face, but things are not so simple.  Apparently the state legislature, recognizing the many frauds and omissions of their incorporated subdivisions, enacted a new law in 1999 fabricated for the purpose of aiding and abetting the municipalities in their ability to maintain the fraud and keep the fountains of revenue flowing.  In the Local Government Code, it is now the law in Texas that:

                  MUNICIPAL ACT OR PROCEEDING PRESUMED VALID

      (a) A governmental act or proceeding of a municipality is conclusively presumed, as of the date it occurred, to be valid and to have occurred in accordance with all applicable statutes and ordinances if:

      (1) the third anniversary of the effective date of the act or proceeding has expired; and

      (2) a lawsuit to annul or invalidate the act or proceeding has not been filed on or before that third anniversary.   Texas Local Government Code, Sec 51.003, Added by Acts 1999, 76th Leg., ch. 1338, § 1, eff. June 19, 1999.

                  This statute, if it’s validity is ever properly challenged, cannot stand Constitutional muster.  There is a “constitutional infirmity” in the statute.  In the opinion of the authors, the statute violates the 5th and 14th Amendments of the federal constitution and probably violates the state constitution at Article I, Sec. 19 because of  due process violations.  The legislature has attempted to create an irrefutable or “conclusive” presumption contrary to the U.S. Supreme Court’s holding in Heiner v. Donnan, infra, where the court held:

      ..it is hard to see how a statutory rebuttable presumption is turned from a rule of evidence or of substantive law as the result of the later statute making it conclusive.  In both cases it is a substitute for proof; in the one, open to challenge and disproof, and in the other conclusive.  However, whether the latter presumption be treated as a rule of evidence or of substantive law, it constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made, to exist in actuality, and the result is the same...”  This court has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut violates the due process clause of the Fourteenth Amendment.  For example, a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by a direct enactment.

      If a legislative body is without power to enact as a rule of evidence a statute denying a litigant the right to prove the facts of his case, certainly the power cannot be made to emerge by putting the enactment in the guise of a rule of substantive law.  Heiner v. Donnan 285 U.S. 312, (1932)

                  For those worried about the applicability of the Fourteenth Amendment, the high court further held that:

      Nor is it material that the Fourteenth Amendment was involved in the Schlesinger Case, instead of the Fifth Amendment, as here. The restraint imposed upon legislation by the due process clauses of the two amendments is the same. Heiner v. Donnan, supra.  And see: the heading “Presumptions” in The Secret Maritime Jurisdiction of the United States Exposed.

      ADDITIONAL REQUIREMENTS FOR QUALIFICATION

                  If the existence of the office can be confirmed, some of the other steps required for qualifying for public office are found in Texas Government Code, Sec. 601.001 et seq.  Officers are required to have a certificate of election or appointment, state and county officers are to be commissioned by the governor, each county clerk is to deliver an election certificate for every elected officer to the secretary of state no later than January 1 after the election.  Under Local Government Code, Sec.s 87 and 88 the officer must give a bond were the bond is required by law.  The oath of office is required of all elected and appointed officials by Texas Constitution, Article XVI, Sec. 1.  All these requirements are to be met before the officer enters the office. 

      TIME PRESCRIBED FOR QUALIFYING

                  There is some authority in Texas where courts have held that when an officer did not qualify for office in the time prescribed by law, the officer would become ineligible to enter the office.  Sometimes the obvious is invisible, so your authors will take liberty to point out the obvious, “....all elected officers, before they enter upon the duties of their offices shall take the following Oath or Affirmation:..”  Texas Const., Art. XVI, Sec. 1(a); and “...all appointed officers, before entering upon the duties of their offices , shall take the following Oath or Affirmation:...”  Article XVI, Sec. 1(c).  The operative words are before and shall.  Should an elected or appointed officer neglect or refuse to timely qualify for office, it might be construed by the courts that such a “constitutional infirmity”(See: Ridout v. State and Cream v. State, infra) might be grounds sufficient for a successful challenge to the authority of a de facto officer.  Some authority, albeit somewhat antiquated still stands as follows:

      “The time prescribed by statute within which a person elected to an office shall qualify has been held to be directory in of the states, and so to be in this case upon former appeal.  These rulings were no doubt made to cover such cases as might arise in which a person could not, for some good reason beyond his own control, qualify within the prescribed time, in order that the right of the person to qualify might not be destroyed without wrong upon his part, and that the wish of the people might not be lightly defeated; but it is not believed that the rule can be extended to cases in which there is neglect upon the part of an elected person.  The statute requiring a party elected to office to qualify within a prescribed period of time, will be construed as directory only in a case where, from reasons beyond his control, he cannot qualify within the time allowed; but such construction will not be given in a case of neglect or refusal to qualify.”  Flatan v. State, (1877) 56 Tex. 93 at 98, 99. 

      A notary public who did not qualify for office by taking oath and making bond within the legally prescribed time could not be a de facto officer because when the appointment became void, “nothing that she did...could in any manner resuscitate it.”  See: Faubion v. State, Tex.Crim.App. (1926) 282 SW 597 at 598. 

      “It may be that, if a newly elected trustee [of a school board] should fail to qualify withing the prescribed time, under some circumstances the county superintendent would be justified in treating such conduct as an intentional abandonment of the office, and be authorized to treat the same as vacant, and to proceed to appoint an incumbent.”  Buchanan v. State, (1904) 81 SW 1237, at 1239.

      We find no procedure to comply with article XVI, Section 1 retroactively.  Tex. Atty.Gen.Op, No. DM-381 (1996).

      OFFICIAL BONDS

                  Official bonds are required for certain officers by statute only.  “The requirement that certain public officials secure an official bond is statutory; the Texas Constitution contains no reference to or requirement of official bonds.  The purpose served by official bonds is nothing more than a form of insurance to protect parties who may be injured by the wrongful actions of officials.”  Texas Practice, Vol 35, Sec. 7.5 at page 206.  However, there is some authority that seems to require all public officers to make official bond whether or not a bond is required by constitution or statute.  “Although it has been held that judicial and legislative officers are not required to give bond, the filing of an official bond is generally regarded as a necessary prerequisite to full title to an office and is a condition precedent to the right of the person elected or appointed to be inducted into office; and without such bond one is not entitled to the office and may not legally hold or discharge its functions.”  67 CJS, Officers, Sec. 47, at page 320.  And at note 84 on the same page, it is found that: “Public policy requires that security be given as condition precedent to qualification for public office and for assumption of responsibility thereof, and, if office holder is unwilling or unable to give security, he cannot properly enter office in discharge of his duty.”  Jones v. Hadfield, Ark, 96 SW2d 959.  How many municipal police officers do you know of who have made official bond? 

      THE TERM OF OFFICE

                  It should also be observed that a public officer must qualify for each term of office, and by the authority of the Texas Constitution, Article 16, Section 30(a) Duration of Offices, “The duration of all offices not fixed by this Constitution shall never exceed two years.”  Of course, the constitution fixes the terms of office for many state and county offices for terms longer than two years, for example, the governor’s term is four years, Supreme and Appellate Court judges is for six years, the county sheriff’s term is four years, and so on.  Many people who have unsuccessfully attempted to challenge the authority of a municipal police office have based their challenges on the following authority:

      “It has also been settled that, since the Constitution limits the terms of all officers not otherwise fixed to two years, this provision will be construed to fix the tenure at the constitutional term, subject to the provision of removal for cause during that time....it follows, also, that the proposition urged by appellant, that, as no term of office was fixed, the plaintiff held at the will of the appointing power is without merit.”  City of Houston v. Estes, (1904) 79 SW 848, at 850.

                  Things are not always as they appear.  Statutes have since been enacted and the Constitution has been amended.  According to former Attorney General Dan Morales:

      A city policeman’s term of office is not fixed.  The term limits of  appointed under a municipal civil service system established by statute or charter if appointment to and removal from office are governed by civil service provisions.[2]  Law enforcement personnel with civil service protection under chapter 143 of the Local Government Code have no set term of office and may be removed only for reasons and under procedures governed by the statute....The oath and filing requirements of article XVI, Section 1 of the Texas Constitution would apply when these individuals are appointed as city police officers.  A police officer would not need to file the statement and take the oath again unless he was appointed again, for example, if he left his position with one civil service city and was hired as a police officer by another civil service city.  Atty.Gen.Op. DM-381, (1996).

                  However, some police officers and some sheriff’s deputies may hold offices who’s term is limited by the Constitution to two years.  Mr. Morales also points out that:

      At least some city police officers, sheriff’s deputies, and security officers do not hold civil service offices.  Whether a particular police officer, deputy, or school district security officer held a civil office depended on the resolution of factual issues and therefore could not be determined n an attorney general opinion.  Atty.Gen.Op. DM-212 (1993).

      VALIDITY OF ACTS

                  Under the heading of “Basis and application of doctrine” of Texas Jurisprudence 3d, Vol. 60, Sec. 345, at page 583 it is found that:

      The law validates the acts of de facto officers as to the public and third persons on the ground that, though not officers in law, they are in fact officers whose acts, public policy requires, should be considered valid. (Pyote I.S.D. v. Estes, 390 SW2d 3, 1965).

      Where the public or third persons are not deceived by the color of authority, there is no basis for applying the doctrine.  (Manning v. Harlan, 122 SW2d 704, 1938).

                  In Ryder v. U.S., 115 S.Ct.2031, 515 U.S. 177, 132 L.Ed.2d 136, (1995) the court held that the “‘de facto officer doctrine’ confers validity upon acts performed by person acting under color of official title even though it is later discovered that legality of that person’s appointment or election to office is deficient.”

                  In Corpus Juris Secundum, Vol. 67, Sec. 276, at page 812, it is found that:

      The acts of an officer de facto are as valid and effectual where they concern the public or the rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure, especially where the existence of the office de jure cannot be challenged, such rule is based on considerations of public policy, necessity, justice, or convenience.  The authority of such an officer cannot be attacked collaterally in a proceeding to which he is not a party.  However, in a suit to which one exercising public office is a party, he cannot justify his acts on the grounds that he was a de facto officer.  The rule cannot be invoked for the advantage of the officer himself, or of one who is fully advised of his status, or who is chargeable with knowledge of the defect in the incumbent’s title to the office.  In order to be valid, the acts of a de facto officer must comply with the requirements of law to the same extent and in the same manner as valid acts of de jure officers.

                  At footnote 85 under the forgoing section on page 812, the Supreme Court of Missouri succinctly defines the ‘de facto officer doctrine” and the following would appear to be the authoritative and controlling case regarding state officers:

      The foundation stone of the whole doctrine of a de facto officer, as gathered from all the authorities, seems to be that of preventing the public or third persons from being deceived to their harm by relying in good faith on the genuineness and validity of acts done by a pseudo-officer.  However much color of authority may clothe the person who assumes to perform the function of an office and discharge its duties, yet if the public or third persons are not deceived thereby, if they know the true state of the case, the reason which gives origin or existence to the rule which validates the act of an officer de facto ceases, and with it ceases, also, all of its ordinary validating incidents and consequences.  State v. Perkins, Mo. S.Ct., 40 SW 650, at 652, 1897; as cited in: Manning v. Harlan, supra,  Tex.Civ.App., 122 SW2d 704, at 708, 1938; and: Gambill v. City of Denton, Tex.Civ.App., 215 SW2d 389, at 391, 1948.

      RISKS AND RESPONSIBILITY OF THIRD PARITIES AFFECTED

                  All of this probably means that it is up to the third party to know that the de facto officer is acting without being qualified for office because the law presumes that all officers are de jure.  Don’t let the de facto rat fool you.  The third party is responsible for challenging the authority of any public officer that is about to act against him, acting against him, or has acted against him, directly as a collateral challenge is not effective.

                  The U.S. Ninth Circuit Court of Appeals plainly puts the responsibility and burden of knowing whether or not the officer acting is de jure or de facto squarely on the party against whom the officer is acting or about to act.  According to the following 9th Circuit Court’s holding it may be presumed that the courts have recognized that government officers are often liars and thieves who routinely and regularly engage in the custom and usage of racketeering.

      Persons dealing with the government are charged with knowing government statutes and regulations and they assume the risk that government agents may exceed their authority and provide misinformation.  Lavin v. Marsh, 9th Cir., 1981, 644 F. 2d 1378, 1383.

      All persons in the United States are chargeable with the knowledge of the Statutes at Large and it is well established that anyone who deals with the government assumes the risk that the agent acting in the governments behalf has exceeded the bounds of his authority.  Bollow v. Federal Reserve Bank of San Francisco, 9th Cir, 1981, 650 F.2d 1093.

                  The U.S. Supreme Court has apparently endorsed the people’s right to inquire into the authority of government agents with whom they have dealings and demand proof of their claimed authority and proof of the title claimed to the office which they are holding.  To say this in another way, it is every individuals responsibility not to be deceived, or caveat emptor!.  Just as the Missouri court in State v. Perkins, supra, held, “yet if the public or third persons are not deceived thereby, if they know the true state of the case, the reason which gives origin or existence to the rule which validates the act of an officer de facto ceases, and with it ceases, also, all of its ordinary validating incidents and consequences.”  The high court has held:

      Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.  The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power.  And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.  Federal Crop Insurance Corp. v. Merrill, 322 U.S. 380, at 384; 68 S.Ct. 1; 92 L.Ed.10, (1947).

      ATTACKS MUST BE DIRECT

                  As stated in Andrade v. Lauer, the de facto officer must be challenged directly:

      The ‘de facto officer doctrine’ distinguishes between collateral attacks, in which plaintiffs attack government action on the ground that the official who took the action were improperly in office, and direct attacks, in which plaintiffs attack the qualifications of the officer, rather than the actions taken by the officer; doctrine holds that collateral attacks pose too great a threat that the attacked ‘officials’ past actions would be subject to wholesale invalidation which would interfere with the government’s ability to take effective action, and only direct attacks are permissible.  Andrade v. Lauer, 729 F2d 1475, C.A.D.C., (1984)

                  A Tennessee court sheds more light on this issue:

      Acts of officers de facto are valid as to third persons and the public, and the competency, eligibility, or authority of a public officer exercising his office in fact, although not a de jure officer, may not be collaterally attacked or inquired into by third parties affected.  Ridout, infra.

      The rule that a de facto officer’s acts are valid as to third parties is subject to exception, where the attack is direct on the right of the person acting or affected; where the legality of the court held by a de facto judge is denied; where the original entry of the office was forcible or fraudulent; where the act, or exercise was single, continuity being lacking; where the assumption of office was in bad faith, with knowledge of infirmity of authority by the person undertaking to act and by the public; and where an officer de jure was in actual present  possession and occupancy of the office, in fact functioning in discharge of its duties.  Ridout v. State, 71 ALR 830, 161 Tenn. 248, 30 SW2d 255.

                  This same doctrine of collateral attack being invalid is applicable to federal as well as state officers:

      A person actually performing the duties of an office under color of title is an officer de facto, and his acts as such officer are valid so far as the public or third parties who have interest in them are concerned; and neither his eligibility to appointment nor the validity of his official acts can be inquired into except in a proceeding brought for that purpose.  United States ex rel. Doss v. Lindsley, 158 ALR 525, 148 F2d 22.

                  So the question must arise, how does one make a proper direct attack against a de facto officer?  Looking to the Supreme Court for an answer in a case wherein a direct challenge was upheld, the court held:

      ...petitioner's claim is that there has been a trespass upon the constitutional power of appointment, not merely a misapplication of a statute providing for the assignment of already appointed judges.  One who makes a timely challenge to the constitutionality of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred.   Glidden Co. v. Zdanok, 370 U.S. 530, 536 . Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.  Ryder v. U.S., supra.

      ...petitioner challenged the composition of the Coast Guard Court of Military Review while his case was pending before that court on direct review. Unlike the defendants in Ball, McDowell, and Ward, petitioner raised his objection to the judges' titles before those very judges and prior to their action on his case.  And his claim is based on the Appointments Clause of Article II of the Constitution - a claim that there has been a "trespass upon the executive power of appointment.  Ryder, supra.

      ...we declined to invoke the de facto officer doctrine in order to avoid deciding a question arising under Article III of the Constitution, saying that the cases in which we had relied on that doctrine did not involve basic constitutional protections designed in part for the benefit of litigants....  We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred. Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.  Ryder, supra

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