OFFICEOFTHEAlTORNEY 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 uponthe

another per8on;A.e L%$rariti.whd$ad no orrtifloete from the Auditor have

suoh eeafstent?"

Librarian whoshell hold office for a tenu of tro (8) years subjeot to removal ror oauae after ehearing by said Court. Noperson shall be eligible to the office of County Llbrerien unless prior to his appointment hehas reoelved rromthe State Boardof Library Exemitn@Tla certificate oi qualifioation for oftioe; andwhenanyOOuutyLibrarian hee heretoforeEon. J. Y. Boyd, pegs I!

*received a certificate of quelifioatlon for office from State Board of Library Examiners, andhas served as County Librarian for any oounty In this State, said Librarian maybe employed or reemployed by any oounty es Librarian wlthout further examination andissuance of Oertifioete fromraid State Board of Library Examiners. TheCounty Librarian shell, prior to entering uponthe duties of hia office, file with the County Clerk the offiolal oath endmekeebond uponthe felthiul performenoeof 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 sumes the Commlrrsioners Court maydetermine.” Article 1684, Vernon’s Civil Statutes, provldee: *Thesalary of the librarian andassistants shell be fixed by said oourt at the time they fix the salary or the appointire county ofricers. The oounty llbrerlen andassistants shell be allowed aotuel andnsoeseery traveling expensmainourrsd in the business of the library.” Arti 1085, Vernon’s Civil Stetutes, provides :

“The librarian shell endeavor to give anequal and oomplete service to all parts of the county through brenoh libraries enddeposit stations in schools end other loaations where suitable quarters maybe obtained, thus dirtrlbuting printed matter, books, andother eduoetional matter es quiokly es oiroumstanoes will permit. The county librarian shall have the power to makerules and regulations for the county free library, to establish branohes end station8 throughout the county, to determine the numberandkind of ’ employees of such library, end, with the approval of the oommissioners’ oourt, to eppoint anddismiss suoh employees. The county librarian shall, subject to the general rules adopted by the oommirsioners* court, build upendmanageaccording to eooepted rules of library management, a library for the people of the aounty andshall determine what books andother 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 "Noperson ahell be eligible to the offloe of County Librarian unless prior to his eppointment he has received from the State Board of Library Examiners e oartifioate 

## 0s qualiricetion for 

## 0triOel

. . .-

Title 33of 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 lawgrants 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 aperson to 

## riii that 

## 0rfi08, this power la expreealy limitad in the reapeot that auohperson, prior to hia appointment, end es e condition of eligibility to hold the offioe muathere 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 endaaaiatent shell be fixad **by** the oommiasionera~ court et the time they fix the aeIeriaa 0s the appointlYe oounty orfioera. Theoommisalonera~ oourt w8ul.dhave 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 aonoarne the temporary appointmant of aneaaiatent librarian to serve In the oapaoity of librarian under the fact.8 outlined. Thaoommiesloners~ oourt is aoourt of limited juriadiotion end powers andIts authority to appoint eneaei8tant librerlen under the facts a8 stated mustnaoeaaarf~ be axpreeaad Or implied from the statutes quoted. Theonly expressed power given to the court oonoerning en eaeiatant librarian is that 

## 0sfixing his salary. Thecourt is further expraaaly granted authority to a_cprwe the appointment of library employear nude bythe oounty librarian and approve anydiamiasel of sunoh employees by the county librarian. AReaaiatent librarian,Eon. J. Y. Boyd, page 4

working under the supervision andoontrol of the oounty librarian, la an employae within the meaning of the term ~amployses of such library* es ueed in Article 1683, aupre.

Weare unable to reoogniae 'anyimplied authority on the pert of the aommiasionera 1oourt to appoint en eaaiatent librarian from the language of these statutes. suoh 

### powerto appoint employees or en eaaietest librarian 

### is l xpreaaly vested by stetuto in the bounty librarian. The oommissioneral court merely approvea auoh appointments.

In the oeae of Waaparvs. Stewart, 66S. W. (8d) 818, the court held that the word wesaiatantn es used in learauthorizing en assistant to the oounty superintendent, neoesaerily implied that duties were to be performed in conneotion with, endunder the diraotion of the auparintendent. Thelanguage of the atetutea involved in this case 

### weestronger 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 whodoes not have a OartifiOat8 ee required by Artiole 1688. It naturally followa that aperson appointed to the offioe of county librarian whola ineligible to hold that office maynot legally 

### demandthe 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 lawpresumed that the Commlaaione~aE Court of Lubbook county will not appoint to the ofrice of oounty librarian anyperson whois, under the plain provisions of' the statute, ineligible to hold that office. Therefore, wedonot deemit necessary to categorioelly enawar thet pert of your first question relating to your euthority to approve awarrant drawn onthe oounty treasurer in payment of the salary of auoh inaligible offioar. In this conneotion, weinvite your ettention to the provision found in both Artiolaa 1988end 8340, R. C. S., whiahmust be incorporated in the oftioiel bond Of eoounty judga or county oommiaaionar:ea one of the oonditions thereof, endis as follows: *. t

. that hewill 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 oodsdonerat oourt hae no authority to appoint an l erlrtant librarian to serve in the oapaolty of oounty llbrarlan.
Tours very truly
Al?fOHNBYOEBEXAL OF ‘.PEXAS

ATTORNEY

GXNEF.AL

OFTMAS