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Honorable Jack N. Fant Opinion No. C-452
County Attorney
El Paso County Re: Whether, upon resignation of
El Paso, Texas the present County Judge, an
incumbent County Commissioner
may tender his resignation
and thereupon be appointed
County Judge by other County
Commissioners acting as the
Commissioners Court, Andy
Bear Sir: related question.
Your request for an opinion on the above-captioned
matter reads as follows:
"The Commissioners Court of El Paso County,
Texas, with the exception of County Judge Glenn
E. Woodard, on the 20th day of May, 1965, requested
that I obtain your department's opinion on the
above stated questions. Their request states as
follows: 'Inasmuch as County Judge Glenn E.
Woodard has announced that he will resign his
post as County Jud e of El Paso County on or
f! and inasmuch as County
about July lst, 19.5;
Commissioner Tom Mays has been unanimously
selected by his fellow Commissioners to succeed
Judge Woodard as County Judge, and has indicated
that he will resign his commission as County
Commissioner at that time, the El Paso County
Commissioners Court hereby respectfully requests
that you obtain from the Attorney General of
the State of Texas an opinion as to the legality
of Commissioner Mays' succeeding Judge Woodard
as County Judge of El Paso County.' The foregoing
request of me for an opinion was signed by all
four County Commissioners of El Paso County,
Texas, Including Tom Mays, County Commissioner
of Precinct No. 4.
"Before setting out my brief, authorities
and conclusions herein on these matters, it is
first necessary to furnish you with the pertinent
facts surrounding the question or questions .
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Hon.'Jack N. Fant, page 2 (C-452)
involved. Approximately ten days ago our
incumbent County Judge, Glenn E. Woodard,
through various news media, announced, and
it is a matter oftcommon knowledge, that he
intends and will resign his post as County
Judge of El Paso County, Texas, on or about
July 1, 1965. The senior Commissioner of
this County, who has held this post for
approximately eight years, Is County Commis-
sioner Tom Ways of Precinct No. 4. Judge
Woodard, having made his announcement that
he will resign on or about July 1, 1965, the
Commissioners Court has met on at least two
and I think three occasions and have decided
to unanimously select Mr. Ways as a successor
to Judge Woodard as County Judge.
"Upon receipt of the formal request by
the Commissioners Court for this opinion,
which was in writing, I asked to have an
audience with them, which I did, however
Judge Woodard was absent but all four
Commissioners attended. At this meeting
I asked the County Commissioners if Judge
Woodard Intended to resign first at the
same meeting and then upon his tender of
resignation and the acceptance of the same
by the Court, if they intended then to
appoint Commissioner Mays to this position.
My answer was 'yes' from the Commissioners.
I explained to them that perhaps if I
predicated this opinion purely upon this
point that It might be necessary in the
future to obtain an opinion as to whether
or not Mr. Mays might resign prior to
the time that Judge Woodard resigned and
have his vacancy filled, then attempt or
desire to be appointed to the County
judgeship, all of this assuming that It
would be at the.ssme meeting of the
Commissioners Court on or about July 1,
1965. The Commissioners then after some
discussion and my explanation evidenced
an intention that I also obtain an opinion
as to the latter question.
"I therefore respectfully request your
department's opinion upon the following two
questions:
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Hon. Jack N. Fant, page 3 (C-452)
(1) Whether, upon the resignation of the
County Judge of El Paso County, Texas, an
incumbent County Commissioner, in this
instance County Commissioner of Precinct
No. 4, may then tender his resignation
and thereupon be appointed County Judge
by other Commissioners acting as a,
Commissioners Court, this assuming that
the Commissioners Court has accepted the
resignation of the County Judge and a
vacancy has been created.
(2) Whether the incumbent Commissioner,
that Is County Commissionersof Precinct
No. 4 of El Paso County, might resign his
present post at the same meeting and his
successor be named by the County Judge,
and then the incumbent County Judge tender
his resignation and the same be accepted
by the Court, and this having been done
the Court appoint the former Commissioner
of Precinct No. 4 as County Judge of
El Paso County, Texas."
The first question has been considered in two
previous Attorney General's opinions, both of which held that
a public board cannot appoint one of its members to an office
or position while he is still a member of the board. Opinion
No. O-410, dated March 15, 1939, held that a member of the
Board of Directors of Texas Technological College was not
eligible for appointment to the presidency of the College.
The member had submitted his resignation from the Board and
did not participate in the vote on his appointment, but at
the time the appointment was made the Governor had not
accepted his resignation or appointed his successor. The
opinion held that under the "holdover" provisions of Article
XVI, Section 17 of the Texas Constitution, his membership
continued until his successor had qualified, and that his
appointment while still a member of the Board was void as
being contrary to public policy.
In Opinion No. O-789, dated May 11, 1939, the county
judge had died and one of the county commissioners wanted to
apply for appointment to fill the vacancy. The question was
whether a member of the commissioners court, by tendering his
resignation as commissioner and having it accepted by the
remaining three commissioners, would be eligible and legally
qualified to be appointed county judge In the event the
remaining three commissioners saw fit to appoint him. The
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Ron. Jack N. Fant, page 4 (C-452)
opinion noted that the commissioner's membership on the court
would not be severed until his successor had qualified
(Article XVI, Section 17 of the Texas Constitution) and that
the vacancy in the office of county judge would have to be
filled before the commissioner could effectuate his reslgna-
tion, since no one was authorized to appoint his successor
except the county judge (Article 2341, V.C.S.). It followed
Opinion No. O-410 In holding that the commissioner was not
eligible for appointment to the judgeship.
The holdings in these two opinions are based on the
common law rule declaring such appointments to be void as
contrary to public policy. That rule becomes the law of this
estate by virtue of Article 1, V.C.S., which adopts the common
law insofar as it does not conflict with the Constitution
and statutes of Texas, and we may recognize it as the law even
if no Texas court has previously declared the rule. State ex
rel. Smith v. Bowman, 184 NJ. App. 549, 170 S.W. 700 w
We have failed to find any Texas case squarely in
point, but at least one case has recognized the existence of
the rule. Ehlinger v. Clark, 117 Tex. 547, 8,S.W.2d 666 (1928),
is frequently cited in support of the rule, but an analysis of
the opinion shows that the case appears to have been decided
under the common law principle that a personcannot hold two
incompatible offices at the same time rather than under the
principle here involved, although some of the reasoning and
conclusions seem to be more nearly in line with the latter
principle. St. Louis Southwestern Ry. Co. of Texas v. Naples
., 30 S.W.2d 703 (w. 1930),
trustees of a school district, in
fulfilling its duty to appoint a board of equalization upon
having exercised its discretion to appoint a tax assessor
for the district instead of having the taxes assessed by the
county tax assessor, could not empower itself to sit as the
board of equalization. There Is some question whether the
principle with which we are now concerned was the one on which
the decision should have been based or was based, but in any
event the court clearly recognized the existence of the rule
in the following quotation from the opinion (30 S.W.2d at 706):
"The statute plainly evidences the will of the
Legislature to grant the power to the board of trustees
to select and appoint an official board of equalization
of assessments to be composed, not of themselves, but
of other qualified and suitable persons. The words
of the grant of authority, which alone can justify
the action of the board of trustees, cannot be extended
by implication or inference to include the authority
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Hon. Jack N. Fant, page 5 (c-452)
to choose and appoint themselves to be the board
of equalization. In this view of the statute
the board of trustees were without any authority,
and it was an absolutely void act, as must be
legally regarded, to appoint themselves as the
board of equalization of assessments. The
principle is set out in 46 C.J. 8 43, p. 940,
namely: @It is contrary to the policy of the
law for an officer to use his official appoint-
ing power to place himself in office, so that,
even in the absence of statutory inhibition,
all officers who have the appointing power are
disqualified for appointment to the offices
to which they may appoint.'"
The full extent of the common law rule is summarized
in the following quotation from 67 C.J.S. 130, Officers, 5 20:
"It is contrary to the policy of the law for
an officer to use his official appointing power
to place himself in office, so that, even in,the
absence of a statutory inhibition, all officers
who have the appointing power are disqualified
for appointment.to the offices to which they may
appoint; and similarly a member of an appointing
board is ineligible for appointment by the board,
even though his vote is not essential to a majority
in favor of his appointment, and although he was
not present when the appointment was made, and
notwithstanding his term in the appointing body
was about to expire; nor can the result be accom-
plished indirectly by his resignation with the
intention that his successor shall cast his vote
for him."
The great weight of authority among cases decided
under the common law In other States is against eligibility
of a person for an appointment to be made by a board of which
he is a member. The following cases discuss the public policy
which forbids the appointment and collect some of the authorities
fact situation and hold merely that a member cannot vote for
himself, without declaring his ineligibility for appointment
by other members of the board, but many cases do reach the
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Hon. Jack N. Fant, page 6 (C-452)
question of eligibility and hold against it. The only decisions
we have found which have rejected the rule of ineligibility
are by the courts of Connecticut, which hold that a member
cannot vote for himself but that he is not rendered ineligible
for appointment upon the vote of other members. State ex rel.
Oakey v. Fowler, 66 Conn. 294, 32 Atl. 162, 33 Atl. 1005
(1895);~State ex rel. Kenney v. Ranslow, 154 A.2d 526 (Conn.
Super. 1959).
The policy of the law is stated in
Weissinger, supra, as follows (131 S.W. at
" * * * It is of the highest importance that
municipal and other bodies of public servants
should be free from every kind of personal influence
in making appointments that carry with them services
to which the public are entitled and compensation
that the public must pay. And this freedom cannot
in its full and fair sense be secured when the
appointee is a member of the body and has the close
opportunity his association and relations afford
to place the other members under obligations that
they may feel obliged to repay. Few persons are
altogether exempt from the influence that intimate
business relations enable associates to obtain,
and few strong enough to put aside personal
considerations in dispensing,public favors. And
it is out of regard for this human sentiment and
weakness, and the fear that the public interest
will not be so well protected if appointing
bodies are not required to go outside their
membership in selection of public servants,
that the rule announced has been adopted, and
ought to be strictly applied."
p6 State ex rel. Bove v. McDaniel; 52 Del. 304, 157 A.2d 463,
6 (IgbO), the court said:
' * * * Both the common law and the statute
demand that the power of appointment be exercised
fairly and impartially. In order to attain this
purpose it is important that the deliberations
of the appointing body not only be free from
wrongdoing but free from suspicion of wrong as
well."
In view of the foregoing authorities, we are of the
opinion that your first question should be answered in the
negative. However, in connection with your second question,
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.
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Hon. Jack N. Fant, page 7 (C-452)
if a Commissioner unconditionally resigns his present
position and the County Judge appoints a successor who
qualifies by taking the proper oath and making the necessary
bond, then the former Commissioner would have severed his
connection as an officer and would be in the same position
as any other applicant who might apply far the office of
County Judge, should there become a vacancy in the office
of County Judge of that county.
The Attorney General's office cannot pass on
factual questions; neither is this opinion to be construed
as suggesting that the Commissioners Court appoint a Certain
individual as County Judge, for this is a matter for the
exclusive determination of the Commissioners Court of a county
if there should be a vacancy in such office.
SUMMARY
A County Commissioner who has tendered his
resignation for the office continues to be a
member of the Commissioners Court pursuant to
the provisions of Section 17 of Article XVI of
the Texas Constitution until his successor has
been appointed and has qualified and under these
circumstances would be ineligible to be appointed
by the Commissioners Court to the office of County
Judge because such an appointment would be contrary
to public policy.
However, if the County Commissioner tenders
his resignation unconditionally and it is accepted
by the County Judge, and in turn the County Judge
appoints a successor who qualifies for such office,
then the former County Commissioner would be in
the same position as any other applicant who might
apply for the office of County Judge in case there
is a vacancy.
Yours very truly,
WAGGGNRR CARR
Attorney General
BY
John H. Banks
Assistant
Jm:sj
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