Case Information
*1 Honorable Chas. F. Hemphlll
County Auditor
upton county
Rankin, Texas Dear Sir: Opinion NO. O-4868
Re: Was the appointment of the Justlce of the Peace legal and is he entitled to his salary under the facts stated?
Your letter of September 29, 1942, requesting the opinion of this department on the above stated question reads in part as follows:
"On September 4th 1942 the Commissioners Court of this County met in Special Session without having notified Commissioner J.O.
Currle, whereas on August 21, 1941, at a Special Meeting of Commissloners~ Court of Upton County, Texas, at which meeting those present were the County Judge, the four County Commissioners, the Sheriff, and the County Clerk, and at which meeting the fol- lowing motion was passed, adopted and made a part of the Commissioners' Court Records of IJpton.County, to wit:
"tMotlon by Commissioner Wheeler, second- ed by Commissioner Yates that no more Special Sessions of the Commissioners' Court be called unless In case of an emergency. That should an emergency arise all members of the Court be not- ified of such attention to call such special Session and advised of the purpose thereof. "'All Commissioners voting Aye.' "In the Special Session above mentioned which was held on September 4, 1942 the Commls- *2 Honorable Chas. F. Hemphill, Page 2, No. O-4868
sloners' Court appointed Mr. Maburn L. Harris
to fulfill an unexpired term as Justice of the
Peace at a salary of $100.00 per month.
"As County Auditor, I have withheld pay- ment of Maburn L. Harris' salary due to the fact
that the Special Session at which he was ap-
polnted was not lawfully and legally held unaer
the Statutes and the Special Agreement had by
and between this ssme group of County Officials
and so recorded in their minutes.
"I am convinced that there was a lawful quorum of the Court present and the only ques-
tion as to the legality of the appointment is
whether or notthe above mentioned agreement Is
of binding consequence in this or any other in-
stance, and whether I am within y just rights
in withholding this man's salary.
In your letter of November 16, 1942, supplementing the above mentioned letter, you state In part:
"I wish-,to advise that the captioned re- ouest was merely for an opinion regarding a
lawful quorum for the Commissioners' Court of
this County due to the fact that this particular
Court had at a prior meeting recorded in the
Commissioners' Court Minutes an agreement whereby they would not hold a special session unless all
Commissioners had been duly notified of such special session. I think the Statutes are clear concerning a legal quorum, but the question is simply whether or not such minute of the Court Is of any value on the records. You request a reason why one of the
Commissioners was not notified of the special ses- sion, I am forced to answer that I do not know.
There Is possibly no reason at all.
"I wish to advise further that all County Officials and all precinct Officials In this
County are being paid on an annual salary basis
for the calendar year of 1942, and the salary to
be paid to the newly appointed Justice of the
Peace Is the same as that paid to the deceased
officer."
Article 2343, Vernon's Annotated Civil Statutes pro- vides:
"Any three members of the said court, ln- oludlng the county judge, shall constitute a quorum *3 .
Honorable Chas. E. Hemphill, Page 3, No. O-4868
for the transaction of any business, except that of levying a county tax.”
Article 2342, Vernon’s Annotated Civil Statutes reads as follows:
“The several commissioners, together with the county judge, shall compose the 'Commls- sioners Court’ , and the county judge, when pre- sent, shall be the presiding officer of said court.”
Article 2348, Vernon’s Annotated Civil Statutes pro- vides :
“The regular terms of the commissioners court shall be commenced and be held at, the court house on the second Monday of each mqnth throughout the year and may continue In sess$on one week; provided the court need not hold&re than one session :each quarter If the business of the court does not demand a session. Any session may adjourn at any time the business of the ‘court is disposed of.. Special terms may be called by the county judge or three of the commissioners, and may continue in session until the business Is
completed.” Article 2355, Vernon’s Annotated Civil Statutes pro- .., vides in part:
“The Court shall have power to fill va- cancies in the office of: . . . . . Justices of the
Peace . . . . Such vacancies shall be filled by a majority vote of the members of said Court, pres- ent and voting, and the person chosen shall hold
office until the next general election.”
Under the facts stated, all members of the commlsslonersl court were present except one county commissioner when the justice of the peace wae appointed by said court at Its special meeting.
However, one of the co,mnissioners had no notice of the special meeting of the oommlssloners 1 court when the court appointed the justice of the peace. Flotwithstanding the order of the commisslon- era’ court requiring that all the members thereof be notified of any or all special sessions of the court, It is our opinion that the action of the commissioners 1 court at a special meeting with- out notice to all the members thereof is void.
It is stated in Corpus Jurls., Volume 46, page 1035: *4 Honorable Chas. E. Hemphill, Page 4, No. O-4868
"In no Casey, in the absence of express statutory provision to the contrary, can the
action of a majority be regarded as valid, un-
less all are present or have been notified,
although It has been held that, until the con-
trary has been shown, it will be presumed that
all were present and participated in the pre-
ceedlng or had notice. Where all the members
of a board are present and participate In a
meeting without objection, it Is Immaterial
that no notice of the meeting was given."
In the case of Webster vs. Texas & Pacific Motor Trans- port Company, et al., decided November 11, 1942 (Supreme Court. of Texas, not yet reported), it Is stated:
"It Is a well established rule in this State, as well as in other States, that where
the Legislature has committed a matter to a
board, bureau, or commission, or other admin-
istrative agency, such board, bureau, or com-
mission must act thereon a8 a body at a stat d
meeting, 'or -one properly called, and of whi cz
all the members of such board have notice, Or
of which they are given an opportunity to at-
tend. Consent or acquiescence of, or agreement
by ,the Individual members actlng sepamtely.,
and not as a body, or by a number of the mem-
bers less than the whole acting collectively
at an unscheduled meeting without notice or
opportunity of the other members to attend,
is not sufficient. 34 Tex. Jur.457; 51 C.J.
62; State v. Union Light, Heat & Power Co.(N.D.), 1821v.w. 539. McNolty v. Board of School Dlr- ectors (Wi.s.j, 78 N.W. 439; People v. Whltrldge, 129 N.Y.S. 295; city of Floydada v. Gillam (Tex. clv. App.), 11 S.W. (2d) 761; King v.
Guerra (Tex. Civ~. App.)~, 1 S.W. (2d) 373; Schwan- beck v. People ex rel. Mith (Colo.) 24 P 575; School District Ifo. 39,~Pattowetoml.e County v. v. Shelton (Okla.), 109 P. 67; Murphy v. City of Albina (Ore.), 29 P. 353; Mason v. Directors of Poor for Erie County (Pa.), 126 Pa. 445; Thompson v. West (Neb.), 82 N.W. 13; First National Bank of Marlin v. Dupuy (Tex. Civ. App.), 133 S.W. (2d) 238;.McAlisterv. City of Frost (Tex. Clv. App.), 131 S.W. (2d) 975."
Honorable Chas. E. Hemphill, Page 5, NO. o-G68
Therefore, in view of the foregoing authorities, as above stated, It Is our opinion that the act of the commissioners1 court at a special meeting appointing the justice of the peace with- out notice to all the members of the commIssIonera court is void.
Article 6828, Vernon's Annotated Civil Statutes reads: @'It shall be unlawful for any officer or court of this State, or of any municipal division thereof, :- to allow, audit, pay or order to be paid, the claim of any person for salary, compensation, fees, per- ; quisites, emoluments or services, as an officer of
the State or of any municipal division thereof, ex- cept to such person as has' been duly elected such of; fleer by the qualified voters of this State, and
whose election has been ascertained and certified or declared in the manner required by law, or who has
been appointed such officer by the lawful appointing power under the Constitution and laws of this State, or who has been adjudged entitled thereto by a State court of competent jurisdiction, and has qualified as such officer in accordance with the law. Any per- son not so elected, appointed and qualified shall
not be entitled to receive pay for services as such ~offlcer, or to exercise the powers or jurisdiction of such officer. The official acts of any person
claiming a right to exercise such power or jurls-
diction contrary to the provisions of this law shall be void."
It will be noted that under the provisions of the fore- going statute that any person who has not been duly elected an officer by the qualified voters of this State and whose election has been as- certained and certified or declared In the manner required by law, or who has been appointed such officer by the lawful appointing power Iunder the Constitution and laws of the State, or who has been adjudged entitled thereto by a State court of competent j,urisdlction, and as qualified as such officer In accordance with law is entitled to claim or he paid any salary, compensation, fees, perquisites, emoluments or services, as an officer of the state or of any municipal division there- of. It will be further noted that any person not so elected, appointed, and q'halified'shall not be entitled to receive pay for services as such officer, or to exercise the powers or jurisdiction of such officer. There- fore, as above stated, It is our opinion that the appointment of the jus- tice of the peace Is void and he is not legally entitled to his salary as such officer.
‘-. . .
Honorable Chas. E. Hemphill, Page 6, No. 0-4868
Trusting that the foregoing fully answers your inqulry;.we are
Yours very truly ATTORNEY GENERAL OF TEXAS APPROVED DEC. 9, 1942 By /II/ Ax-dell Wllllfuus
Ardell Willlama GERALDC.MANN Aaslstaat
ATTORNEY GENERAL OF TEXAS
APPROVED
OPINION COMMITTEE
By /ii/ BWB, CHAIRMAN
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