Case Information
*1 THE ATTORNEY GENERAL OF TEXAS February 1, 1939 11. m
Gerald C. AUWI-IN , opinion Ho. 181 Hon. Y. A. (Bill) Morrison Bec Legality of vacancy appolnt- Criminal Dlstrlct Attorney ment of non-resident of Cameron Milam county to the office of City Attorney. Oameron,Texas - Dear Mr~. Morrison:
By your inder date of January 17 1939, you seek the opinion of this Department upon the legality of the con- templated by the Mayor and City Council of Cameron, of an attorney who does not~live to the office of City Attorney, the corporate said city. You append 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 the City of Cameron is existing tha< form of. government, and your question will be determined by statutes per- taining thereto. Revised Civil Statutes protildes for
Article corpora 4 ions and constitutes governing officials guch municipal them elective offices.
Article 989 for filling of vacancies of mayor or alderman by special elections offices, lncludlng that city In respect to such appointment, said attorney, by appointment. statute provides, In part, as r0ii0wst
nIn case of a ,vaoancy in any other office in the city, the mayor or acting shall 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 the vacancy Ln the ‘office of City Attorney by ap them is ointment. The only difficulty confronting
the residentda~ or qualifications for office of City Attorney, embodied 1925, as fol1owsi
Ii&. W. A.(Blll) Morrison, page 2
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 is thus posed,
Is a vacancy appointment of a city attorney &I Council,
tantamc iunt to or equivalent to the appointment of such requirements iatter Article applicable?
If an affirmative answer to the above question is war- ranted, the residential of kticle will prevent to the offior of oity attor-
ney, of any lawyer who does not live within the corporate 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 the meaning of Article CLpuncil within 1003, Raviard C on the other hand, the oontemplated in thia ease. is auat ainablr
Whilr thla quratioa is aot without diffioulty, ia our in oonolusion foregoing question ahould ba umorqd 4ny other oonstructioa of Artlola 1003, Rrviaad Civil affirmative. Statutoa, would rondrr it, ‘for all practical purpoaaa, a nullity and defeat the palpable purpoor tha Leglalatura to rrquiro all mun1olpal offloara to be rraidrata the munioipality in question- 1925, ia a gomr11 atatuto Artiolo 2927, Raviaad Civil statutea, govrrnln olootivr Bteta, tha eligibility a@u&aty, prroiaot roquiroa muniolpa f offioara, and aa to the latter rrtldraor la thr Rwiscld Givil municipality involved, kctiolr Itatutaa provider that no parroa ahall be rlkgibla to tha offioa of Mayor or rldarman, unlaaa ha hra roaldrd ior a oertaia orlod tha oity Unita* 48 WI have herrlnabovr rhmm, Art10 o 1003, Rovlaod 1929, requirea Civil Btatutea that no parson ahell bo a polatrd to my offlor by tha oity oounoil unlraa ha raaidra with a P the oor- limit8 of the oity ia quuration. Aeiola 989 Wovlmd OLvil orate tatutor 1929, undar whioh thr appolattnrat ti in thla’oaar La aado, ia’ ailenk~ aa to raaidratial quallfioationa, but WI aubmit in tho abaonor an rxprraa provirion in auoh atatuta allowiag of non-reaidmtr, we are not juatifled in aaoribing thr Leglalaturr an Mont to orratr in thia one inatanor an rxoep- polloy of requiring muniolpal ofrioara to be tioa to ita unlvrraal resldonta of the oity whloh they are ol8otod to aorva~ *3 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, 1925, should, under reasonablr 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 977 Revised Civil 8tatutrs, 1925, and under ~the common acception
term, oomposrd of the mayor .and aldemOn. Vacancy appoint- ments are made by the “city counoll~~ in this aonso of the term, and The + are not made by the mayor alone or by the aldermen alone. power to appoint said ~offlcers under Article 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 statos, holding, in princlplr, that where the power of Is absolute and the appointee has been determined upon, no further may be conslaored consent or approval is necessary, and the appointment
as made, but where the assent or confirmation some other officer or body la requlrod can be complete only when such assent or conffrmatlon is obtained, because It is not until 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 as foliows* ire 0fri00,
“In case of a vacancy in any elect from whatever reason, the council, upon nomination by the mayor, shall the vacancy by the solec- tlon of soae porron by a vote of a majority 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 is clear from the language of the chartor abwo quotod a vaoanoy the mayor has no authority to fill in an elective offior, and that such authority ia Vested rolely in the olty oounoll. Pho selection of the person such vaoanoy must be by the council, which Is composed of the board of alarrum. Neither can act in the matter in- dependent of the other, and no legal tem- porary 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 initial *4 .
Hon. W. 4. (Bill) Morrison, pa%! 4
step W-making the appolntmtint, ‘and the appoint- ment .becomos. complete only when Cohcurred in by M&hem, Pub .orr . a majority the aldormon.
Par. 114, .'I
Under this wo believe the word “appointtient”, as. employed 989, Revised Civil Statutes, must be con- strued to mean nselectlon” or %omlnatlon” by the mayor, and that is only complete when such seltiction or nomination Is confirmed by the city council. It necessarily follows the vacancy of City Attorney of Cameron is governed by the residential of Article 1003, Revised Civil Statutes and that no attorney who lives beyond the confines of the City of &meron can legally be appointed this office.
Yours very truly ATTORNEY GBNERAL OF TEXAS By /s/ Pat M. Neff, Jr. Assistant
PM?:N:wb
APPROVEiD
/s/ Gerald C. Mann
ATTORNEY GENERRQL OF TEXAS