OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Bon. J. Y. Boyd
COuntyAuditor
Lubbook County
Lubbook, Texea
Deer Sirl
i'
opinion BO. O-2944
Rer Appgiotment of a dopnty.,.~,
l+b*afiy end eerrlrt~t.
thie Department upon the
another per8on;A.e L%$rariti.whd$ad no orrtifloete from the
Auditor have
suoh eeafstent?"
Librarian who shell hold office for a tenu of tro (8) years
subjeot to removal ror oauae after e hearing by said Court.
No person shall be eligible to the office of County Llbrerien
unless prior to his appointment he has reoelved rrom the
State Board of Library Exemitn@Tl a certificate oi qualifioa-
tion for oftioe; and when any OOuuty Librarian hee heretofore
Eon. J. Y. Boyd, pegs I!
*received a certificate of quelifioatlon for office from
State Board of Library Examiners, and has served as
County Librarian for any oounty In this State, said
Librarian may be employed or reemployed by any oounty
es Librarian wlthout further examination and issuance
of Oertifioete from raid State Board of Library Examiners.
The County Librarian shell, prior to entering upon the
duties of hia office, file with the County Clerk the
offiolal oath end meke e bond upon the felthiul perfor-
menoe of hi8 duties with suffiolent sureties approved
by the County Judge of the county ot whioh the Librerian
Is to be the County Librarian, in suah sum es the Commlrr-
sioners Court may determine.”
Article 1684, Vernon’s Civil Statutes, provldee:
*The salary of the librarian and assistants shell
be fixed by said oourt at the time they fix the salary
or the appointire county ofricers. The oounty llbrerlen
and assistants shell be allowed aotuel and nsoeseery
traveling expensma inourrsd in the business of the library.”
Arti 1085, Vernon’s Civil Stetutes, provides :
“The librarian shell endeavor to give an equal and
oomplete service to all parts of the county through brenoh
libraries end deposit stations in schools end other loaa-
tions where suitable quarters may be obtained, thus dir-
trlbuting printed matter, books, and other eduoetional
matter es quiokly es oiroumstanoes will permit. The
county librarian shall have the power to make rules and
regulations for the county free library, to establish
branohes end station8 throughout the county, to determine
the number and kind of’ employees of such library, end,
with the approval of the oommissioners’ oourt, to eppoint
and dismiss suoh employees. The county librarian shall,
subject to the general rules adopted by the oommirsioners*
court, build up end manage according to eooepted rules
of library management, a library for the people of the
aounty and shall determine what books and other library
equipment shall be purohesed.”
Hon. J. Y. Boyd, page 3
Your attention is oelled to the provision in tha
first 'statute quoted above that "No person ahell be eligible
to the offloe of County Librarian unless prior to his eppoint-
ment he has received from the State Board of Library Examiners
e oartifioate 0s qualiricetion for 0triOel . . .-
Title 33 of our atetutes containing the above
ertiolea end from which the oommiaaionora~ oourt receives
its authority and la authorized to oraata, meintein end
operate county free librariaa, also creates the Stats Board
of Library Exeminera. Xhlle the law grants to the oomai8-
aionerat court the authority to operate and meintein the
libraries, creating the office of oounty librarian with
power in the oommiaaionara * oourt to appoint a person to
riii that 0rfi08, this power la expreealy limitad in the
reapeot that auoh person, prior to hia appointment, end es
e condition of eligibility to hold the offioe muat here
received a certifioate of qualification for the offiae from
the State Board of Library Examiners.
It will be noted that Art1oJ.e 1634, arpre, requires
that the salary of the librarian end aaaiatent shell be fixad
by the oommiasionera~ court et the time they fix the aeIeriaa
0s the appointlYe oounty orfioera. The oommisalonera~ oourt
w8ul.d have no euthority to fix tha ael.ery of en IneIigible
parson ae county librarian, end it would neoeaaerily follow
thet auoh ineligible person, ocoupying the position of oounty
librarian, could not legally reoeive the salary whioh ettaohaa
to the ofrioe, the ruIrilling 0s whloh is conditioned upon ona
being quellfled and el1gibla at the time ,of the appointment.
This brings us to your seoond question which aon-
oarne the temporary appointmant of an eaaiatent librarian to
serve In the oapaoity of librarian under the fact.8 outlined.
Tha oommiesloners~ oourt is a oourt of limited juriadiotion
end powers and Its authority to appoint en eaei8tant librerlen
under the facts a8 stated must naoeaaarf~ be axpreeaad Or
implied from the statutes quoted. The only expressed power
given to the court oonoerning en eaeiatant librarian is that
0s fixing his salary. The court is further expraaaly granted
authority to a_cprwe the appointment of library employear nude
by the oounty librarian and approve any diamiasel of sunoh
employees by the county librarian. AR eaaiatent librarian,
Eon. J. Y. Boyd, page 4
working under the supervision and oontrol of the oounty
librarian, la an employae within the meaning of the term
~amployses of such library* es ueed in Article 1683, aupre.
We are unable to reoogniae 'any implied authority
on the pert of the aommiasionera 1 oourt to appoint en eaaia-
tent librarian from the language of these statutes. suoh
power to appoint employees or en eaaietest librarian is
lxpreaaly vested by stetuto in the bounty librarian. The
oommissioneral court merely approvea auoh appointments.
In the oeae of Waapar vs. Stewart, 66 S. W. (8d)
818, the court held that the word wesaiatantn es used in
lear authorizing en assistant to the oounty superintendent,
neoesaerily implied that duties were to be performed in
conneotion with, end under the diraotion of the auparinten-
dent. The language of the atetutea involved in this case
wee stronger for implying authority in the oommiaaionera~
aourt to employ or appoint ~JI aaaiata.nt then in the above
statutes.
In aocordenoe with the views expressed, it la
therefore the opinion of this Depertmant that the oommia-
@loners' court has no euthority to appoint a person oounty
librerien who does not have a OartifiOat8 ee required by
Artiole 1688. It naturally followa that a person appointed
to the offioe of county librarian who la ineligible to hold
that office may not legally demand the selery'etteohed to
said office. It la presumed that all publi,o orfioara will
perform their duties in eooordenoe with law, In the instant
case, the law presumed that the Commlaaione~aE Court of Lub-
book county will not appoint to the ofrice of oounty librarian
any person who is, under the plain provisions of' the statute,
ineligible to hold that office. Therefore, we do not deem it
necessary to categorioelly enawar thet pert of your first
question relating to your euthority to approve a warrant drawn
on the oounty treasurer in payment of the salary of auoh
inaligible offioar. In this conneotion, we invite your etten-
tion to the provision found in both Artiolaa 1988 end 8340,
R. C. S., whiah must be incorporated in the oftioiel bond Of
e oounty judga or county oommiaaionar:ea one of the oonditions
thereof, end is as follows: *. t . that he will not rote or
give his oonaent to pay out oounty funds except for lawful
purposes .*
632
Hon. T. Y. Boy4, page 5
In answer to your amoon question, it is~ our
further opinion that when them ir no qualiried county
&ibrarian in oharge of a county free library the oods-
donerat oourt hae no authority to appoint an lerlrtant
librarian to serve in the oapaolty of oounty llbrarlan.
Tours very truly
Al?fOHNBY OEBEXAL OF ‘.PEXAS
ATTORNEY
GXNEF.AL
OF TMAS