THE ATTORNEY GENERAL
OF TEXAS
February 1, 1939
Gerald C. AUWI-IN 11. m
,
Hon. Y. A. (Bill) Morrison opinion Ho. 181
Criminal Dlstrlct Attorney Bec Legality of vacancy appolnt-
Milam county ment of non-resident of Cameron
Oameron,Texas - to the office of City Attorney.
Dear Mr~. Morrison:
By your inquiry inder date of January 17 1939, you
seek the opinion of this Department upon the legality of the con-
templated appointment by the Mayor and City Council of Cameron,
to the office of City Attorney, of an attorney who does not~live
within the corporate limits of said city.
You append to your letter of inquiry certain statutes
of Title 28 of the Revised Statutes, applicable to municlpalltles
operating under the general law and having the aldermanic form
of government; hence for the purposes of this opinion we shall
assume that the City of Cameron is existing under tha< form of.
government, and your question will be determined by statutes per-
taining thereto.
Article 977, Revised Civil Statutes protildes for the
governing officials of guch municipal corpora 4 ions and constitutes
them elective offices.
Article 989 Revised Civil Statutes, provides for the
filling of vacancies in the office of mayor or alderman by special
elections and other statutory offices, lncludlng that of city
attorney, by appointment. In respect to such appointment, said
statute provides, In part, as r0ii0wst
nIn case of a ,vaoancy in any other office in the
city, the mayor or acting mayor shall fill such vacancy
by appointment, to be confirmed by the city coun~ll.~,
The foregoing statute embraces vacancies arising from
whatever cause including resignations, as In the instant case
State ex rel &gsbury v. Brinkerhoff, 17 S.V. 109. ConsequenCly,
the Mayor and City Council of Cameron are properly proceeding,
onder said statutory authority, to fill the vacancy Ln the ‘office
of City Attorney by ap ointment. The only difficulty confronting
them is the residentda~ P requirements or qualifications for the
office of City Attorney, embodied in Article 1003, Revised Civil
Statutes, 1925, as fol1owsi
Ii&. W. A.(Blll) Morrison, page 2 (181)
Wo person other than en elector resident of the
“,;z,;t;$l be appoint ad to any off ice by the city
The question presented by the application of the fore-
going statutes to your inquiry is thus posed,
Is a vacancy appointment of a city attorney &I
Council, under
tantamc iunt to or equivalent to the appointment of such
requirements of the iatter Article applicable?
If an affirmative answer to the above question is war-
ranted, the residential requirements of kticle 1003, Revised Civil
Statutes, will prevent the appointment to the offior of oity attor-
ney, of any lawyer who does not live within the corporate limits of
the City of Cameron. If, on the oontrary there ia a valid di8-
tinctlon to be &awn between appointment to thla offlor &y the rp~pp~,
u on confirmation by City Council, within the language of 4rtiole
919, on the one hand, and appointment to this offloa
CLpuncil within the meaning of Article 1003, Raviard C
on the other hand, then the oontemplated appointment in thia ease.
is auat ainablr .
Whilr thla quratioa is aot without diffioulty, it ia our
oonolusion that the foregoing question ahould ba umorqd in the
affirmative. 4ny other oonstructioa of Artlola 1003, Rrviaad Civil
Statutoa, would rondrr it, ‘for all practical purpoaaa, a nullity
and defeat the palpable purpoor or tha Leglalatura to rrquiro all
mun1olpal offloara to be rraidrata of the munioipality in question-
Artiolo 2927, Raviaad Civil statutea, 1925, ia a gomr11 atatuto
govrrnln tha eligibility of olootivr Bteta, a@u&aty, prroiaot and
muniolpa f offioara, and aa to the latter roquiroa rrtldraor la thr
municipality involved, kctiolr 987 Rwiscld Givil Itatutaa 1925,
provider that no parroa ahall be rlkgibla to tha offioa of Mayor
or rldarman, unlaaa ha hra roaldrd ior a oertaia orlod within tha
oity Unita* 48 WI have herrlnabovr rhmm, Art10Po 1003, Rovlaod
Civil Btatutea 1929, requirea that no parson ahell bo a polatrd
to my offlor by tha oity oounoil unlraa ha raaidra with Pa the oor-
orate limit8 of the oity ia quuration. Aeiola 989 Wovlmd OLvil
titatutor 1929, undar whioh thr appolattnrat in thla’oaar La aado,
ia’ ailenk~ aa to raaidratial quallfioationa, but WI aubmit that in
tho abaonor of an rxprraa provirion in auoh atatuta allowiag the
appointment of non-reaidmtr, we are not juatifled in aaoribing to
thr Leglalaturr an Mont to orratr in thia one inatanor an rxoep-
tioa to ita unlvrraal polloy of requiring muniolpal ofrioara to be
resldonta of the oity whloh they are ol8otod to aorva~
Hon. W. 8. (Bill) Morrison, page 3 (181)
Moreover, it is our conclusion that the vacancy appoint-
ments by the myor with confirmation by the city council, in accord-
ance with Artlolr 989, Revised Civil Statutes, 1925, should, under
reasonablr statutory oonatruotlon and the authorities be deemed
an appointment by ‘the city ~oouncll so as to bring into operation
the resldontial rrqulroments of A&o10 1003, Rovlsed Civil Stat-
utes, because “oity council* is by statutory drfialtion in Article
977 Revised Civil 8tatutrs, 1925, and under ~the common acception
of the term, oomposrd of the mayor .and aldemOn. Vacancy appoint-
ments are made by the “city counoll~~ in this aonso of the term, and
are not made by the mayor alone or by the aldermen alone. The +
power to appoint said ~offlcers under Article 989 Revised Civil
Statutes 192!i, 1s not absoluto in tho mayor, bu 4 oonditional upon
its oonf&aatlon by tho city oouncll.
This conclusion finds support In the decisions of this
and other statos, holding, in princlplr, that where the power of
appointment Is absolute and the appointee has been determined upon,
no further consent or approval is necessary, and the appointment
may be conslaored as made, but where the assent or confirmation of
some other officer or body la requlrod the appointment can be
complete only when such assent or conffrmatlon is obtained, because
It is not until then that the last act required of the appointing
power is performed. Brumb v. Boyd, et al 66 S.W. 874. Mechem,’
Public Offices, Section 11 2: and cases cited.
In the case of Brumby v. Boyd supra, the municipal char-
ter under consideration provides as foliows*
“In case of a vacancy in any elect ire 0fri00,
from whatever reason, the council, upon nomination
by the mayor, shall fill the vacancy by the solec-
tlon of soae porron by a vote of a majority of the
aldermen elect ad ana qualiz lea. 11
With referoncr to whether this charter provision confer-
red the power of appointment upon the mayor or upon the city coun-
cil, the court had thfr to say,
We think it is clear from the language of the
chartor abwo quotod that the mayor has no authority
to fill a vaoanoy in an elective offior, and that such
authority ia Vested rolely in the olty oounoll. Pho
selection of the person to fill such vaoanoy must be
by the council, which Is composed of the mayor and
board of alarrum. Neither can act in the matter in-
dependent of the other, and no legal appointment tem-
porary or otherwise, can be made unless ooncurra (I in
by both the mayor and a majority of the board of alder-
men. Tho nomination by the mayor Is only the initial
.
Hon. W. 4. (Bill) Morrison, pa%! 4 (181)
step W-making the appolntmtint, ‘and the appoint-
ment .becomos. complete only when Cohcurred in by
a majority of the aldormon. M&hem, Pub .orr .
Par. 114, . .'I
Under this authority, wo believe the word “appointtient”,
as. employed in Article 989, Revised Civil Statutes, must be con-
strued to mean nselectlon” or %omlnatlon” by the mayor, and that
the appointment is only complete when such seltiction or nomination
Is confirmed by the city council. It necessarily follows that the
appointment to fill the vacancy in the office of City Attorney of
Cameron is governed by the residential requirements of Article
1003, Revised Civil Statutes and that no attorney who lives beyond
the confines of the City of &meron can legally be appointed to
this office.
Yours very truly
ATTORNEYGBNERALOF TEXAS
By /s/ Pat M. Neff, Jr.
Assistant
PM?:N:wb
APPROVEiD
/s/ Gerald C. Mann
ATTORNEYGENERRQL OF TEXAS