L
R-225
NEY
ArrsTrN 11. TEXAS Overruled by Kerby v..
Collin County, 212 S.W. (2d)
494,,Dallas Civ.~App. (1948)
Apr. 2, 1947
Hon. R. E. Beasley Opinion No. V-115
County Auditor
Collin County Re: Whether an order of the Com-
McKinney, Texas missionere’ Court appointing
a County Treasurer to fill the
unexpired term of her prede-
ceseer in office constitutes a
written contract.
Dear Sir:
Your statement and request for an opfhion are in part as
follows:
“On February 8, 1947, the claim of AItaBrowne
Kerby (Exhibit,“A”) fer salary($2,033,20) and inte-
rest ($319.60) was filed with the Commissioners’
Court of Collin County, Texas.
“THE FACTS ARE AS FOLLQWS:
“On the first day of May, 1943, the Commission-
ers’ Court in regular session accepted the resigna-
tion of the then acting County Treasurer. On the
same date and in the same motion, the Cou,rt ape
proved the bond and oath of office of Alta Browne
Kerby as county treasurer and appointed her to fill
the unexpired term for that office (Exhibit “B”). At
the time this action was taken, th&r,e was a apr~ial
county treasurer salary law for GoLUn County on the
Statute Books which provided for $608.00 per year
and at the time Alta Brovme Kerby wa$ appointed,
she knew that that was the e that w6a being Raid
for that office,.
“We are well acquainted with the fact that many
special statutes like this one have bean declared to
be unconstitutional and the Courts have held that thin
County Treasurer was entitled to a mPnthl$r #&%a~?
based on an annual salary of $t@d8.80 per year i , .
“Is this claim barred by the two ye,ar statute of
limitations P w
Hon. R. E. Beasley, Page 2 Opinion No. V-115
Article 1703 of V.C.S. reeds:
“‘A County Treasurer shall be electe,d at each
regular general election for a term of two years.”
Article 1707 of V.C.S. provides:
“In case of vacancy in the office of the County
Treasurer, the Commissioners’ Court of the coun-
ty in which such vacancy occurs shall fill such va-
oancy by appointment, such appointment to be made
by a majority vote of the Commissioners present,
at a regular or special term of such court. Such
appointment shall continue in force until the next
general election.”
Article 1708 of V.C,S. reads:
“The person appointsd to fill the vacancy as
provided in the pre,ccding Article shall; be,fore en-
tering upon the di,$charge of the duties of such of-
fice and within twen,ty days afte,r he has been noti-
fied of such appointment, take the oath and give the
bonds requi,red, as in th,e:,case of a,n e~Ie,ction to such
office. w (Emphasis ours).
The authorities are uniform in holding that one appointed
to an elective office holds an irrevocable position insofar as the ap-
pointing authorities are concerned, 89 A,L,R. 132: Collinsv. Tracy,
36 Tex, 546.
Since under Article 1708, supra, the appointee to fill a va-
cancy shall perform all of the acts required of a duly elected County
Treasurer, coupled with the further fact that his appointment from
the point of view of the appointing authority is irrevocable, it natur-
ally follows he assumes the full responsibility of the office just as
though he had been elected to it.
Article 3038, V.C,S.,~ provides:
“‘On the Monday next f,ollowing the day of ele,c-
tion, but not before, the Commismon&.rs’ Court shall
open the election returns and estimate the re,sult, aa-
cording the state of the polls at each precinct in a
book to be kept for that purpose; o . (”
Article 3032, V.C.S., reads:
“After an estimate of the result sf an alectien
has been made as provided for in this title, the
.
Hon. R. E. Beaeley, Page 3 OpWoa Wo. Y-&5
Co&y Judge shall deliver to the candidate or candi-
dates for whom the groateat number of votas have ‘been
polledfo,r county and precfnct offfcers a certificate of
election, naming there& the office to WI&& such candi-
date has been elected, the number of votes polled for
him, and the day on which such election was held and
shall sign the same and cause the seal of the county
court to tie thereon impressed. . . ”
In the case of an elected official under Article 3030, aupra,
the Commissioners’ Court estimates the result and record* the &ate
of the polls in each precinct in a book to be kept for that purpore, and
under Article 3032, the County Judge delivers to the candida* who
hao polled tha greatest number of vote&, for ~eouatyand precinct om
a certificate of election. In our opinion, thfs oozutituter as m8u& 0f.a
written inrtrument a8 the miautes of the Commis8ionera’ Gorvt appc&t-
ing h person to fill a vacancy. This may be construed ae analogous to
the minutes of the Commissioners’ Court in appoiartag a parron to fill
a vacancy in office, and clearly does not constitute an im&mmdmt in
writing that would have the edict of a written contract.
Article 5526, V.C.S;, reads:
“There shall be commenced and prosecuted with-
in two years after the cause of action shall have ac-
crued and not afterwards ,a11 action8 or suits%ucourt
of the following de.#arfption:
”
. . .
“4. Actions foa’debt where the indebtedness ier&ot
evidenced by a contract in writfng.”
Article 5527, Y.C.S., provides:
“There ahaLl bo wsninmaed qd prosecuted with-
in four year* after SQmcaw of actfan eh8ll have *Ic-
trued add not afterwards ail actions or suibs in Court
of the following description:
“1. Aotiona for debt where the iadebtedneae is wi-
dented by or founded upon any contract in writing . . .*
Texam Jurisprudence, Volume 2.8, page 114, section 36, pro-
vides in part a.e follows:
I.. . . An or&r of a Commissioners,’ Court ir
not a written agreement if it contain6 no provia$oas
as to many essential feature8 of the contract. Nor
‘does a general law in a city fixing the salary at-
tached to an office and regulating the fee to which
I-Ion..R. E. Beasley, Page 4 Opinion No. V-115
an officer ie en&lad constitute a cosltract between
the city acid a? officer who performs services pm-
suant to’the ordinance , . .*
The @se of.S&b v. Wise
,, that a County Tlbeaeures ‘uan, at the e *
recover commP~oicaiara aecrufng~aml
~years before In&itut~o~ of suit. :
‘In the came’of City of Houston v. S%amfi, 9@ S, W. ,$Fa,@@
Court said:
“While ~upnatbi~ &~Juc+, we w&Rdicpa(aa of
the contention of defendant that the oomm&eio~re
claimed having been earned under a+nordinaqee or
resolution of the city fixing the, aallay and fee,& of
the city attorney, the au& for aaid commies’ioda
was founded upon a writ&en a.oat%aet arul wovtd rxet
be barred until four yeaarls h&r :%hcr;auuu ti%i!.&$an
accrued, This ,ordinaoce aarmot be
contra,& between the &,l and the .Q$
der whic,h the service@ !ror $ihX& %
claims compensation was rendesed
general law of the city e Wary b be a‘t-
tached %a the office of e mey csd r&guIating
ths fees to which rhould be fttatwea.
Wa think it claar that aommisaiene
claimed by an officer we* caned m&l a geixeral
law fFdag the compehsa&oon for the oervfce~s ren-
dered does not make the,$uSt fog eulvh ~omxr$~~si@x6
one upon a written coiatraet, and thb t&al court
corm&ly heA* that fpM twwysar at&ate of ‘Iimita-
tions..applied to defeadaM% claim for arid commi+
sions.”
In the oa#e of Stegall, Sheriff v. lvlaLenn& county, 144 S.
W. (2d) llll, the coa,rt held in UI action involvmg a mutual mistake
aa to fees ,betwesn a sheriff and MS aotiMy !th&tlimitatioq bclgiaa, to
run on the sheriff”6 claim agaib&t the county ti favor of the county ,.
from the time the claim matured re ardless of whether it WI@ pre-
sented to and rejected by the Go,,ljl seiensrr ” Court, am? t2qt *uch
a claim would be governed by the, t9po year #tat&~ a lUr&af&u.
/
The case’of Lealie v. City of DalI&, 172 S, We (%#)~777, ,.
held that the two year limitataon LI
ageinst a city to recover pryments ‘ma
ordinance for services of a special police ob&er, an8 huhansa,b,wltcw
action was filed more than two years after the last of such payments
was made; the action was bar”red.
Hon. R. E. Beasley, Page 5 Opinion No, V-II5
The court in the case of Wilson v. Shaw, 188 N.W. 940,
166 A.L.R. 042, said:
“Those appointed to fill vaundes shall bold
until the next general eleotien and until their BUG-
cessers are elected and qualified. , . . Therefore,
whoever is appointed or ekected is appointed or
elected for an unexpired portion of a prescribed
term. The term prescribed is a unit of time. A
new term is not created. The appointee simply
steps into the shoes, so to speak, of him who is
elected for the constitutional term,. , . and is en-
titled to perform the duties and receive the emolu-
ments of the office until the end of that term or
until a successor shall have been elected. . . The
term lives on even though the incumbent resigns,
is impeached ordies, Personality has nothing to
do with the question.” (Emphasis ours.)
In our opinion, an order of the Commiesioners’ Court
appointing a treasurer to fill the unexpired term of Ceunty Treas-
urer is not a contract in writing within the meaning of &t*cle
5526, V,C.S., but is only evidence of authority to hold such posi-
tion by the appointee stepping into the shoes of the elected offi-
cial. Since the order is not a contract in wri’ti!&g, ittherefore
follows that the two year statute of limitation is appUcpi3Ie, and
your question is answered in the affirmative.
.An appaintment by :a Corpmjssionese Court
of .a County Treasurer to fill an unexpired term
which is entered of record on the ‘minutes of said
court does, not constitute a contract in ,writing, and
the two year statute of limitations. is applicable to
,a claim for certain salary items, (kTt&ie 5526,
~V.c&)
BY Robert A. Hall,
~ Assistant
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R&.fI:JM,c :. . ,.