April 30. 1987

BonorableHugh Penner ChairF4ao cmmittee on Intergovernmental Relations Texas State Senate P. 0. Box 12068 Austin,Texas 78711 Dear SenatorParmer: opinionNo.JM-686 Re: Whether themayor or city manager of a home-rule city is authorized to appointand remove a public housing authority conmissioner

As chairman of the Senate Committee on Intergovernmental Relations, you ask about a situation that has arisen in the city of San Benitowhich prompts the followingquestion:

With regard to a home rule city which has adopted a charter making the city manager chief executive and administrativehead of a city, dues the citymanager or does themayor have the power to appoint and remove public housing authority commissioners governed by article 1269k of Vernon's Annotated Texas Statutes? Section 5 of article 1269k. V.T.C.S., provides that the mayor shall appoint the commissionersof thehousing authorityand section 7 thereof provides that, "[f]or inefficiency or neglect of duty or misconduct in office,a commissionerof an authoritymay be removedby themayor. . . ." Section 3(d) of article 1269kdefines "mayor"as follows: 'Mayor' shall mean the mayor of the city or the officer thereof charged with the duties customarily imposedon themayor or executivehead of the city. You have furnishedus with relevantportions of the city charter of San Benito. We find the following pertinent to the issue you present. Article II. City Government

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Section 1 The Mayor shall be the executive officer of the City and shall have direct charge of the Police, Sanitary and Fire Departments of the City, and general supervision over all departments, and officersof theCity, provided that a CityManager may be appointedas provided inArticleXXV of the Charter of theCity of SanBenito. . . .

. . . . ArticleXXV. CityManager Section 1. Appointment At such 

### time after the taking effect of this charter as the city commission shall see fit todo so, it may appoint a city manager, who shall be the administrative head of the municipal government and shall be responsible for the efficient administrationof all departments. Section 2. Duties The city manager shall see that the laws and ordinances of the city are enforced. He shall appoint all appointive officers, except city attorney.,and employees of the city, with advice and consent of the city commission, such appointments to be made upon merit and fitness alone and he may at will remove any officers or appointees appointed by him. He shall exercise control and supervision over all departments and offices that may be created by the city commission, and all officers and appointees appointed by him. . . . (Emphasisadded). The information you furnish us reflects "The San Benito commissionhas elected to appoint a citymanager and has operated the city formany years with a city manager as the executive head of the city." The city manager of San Benito is designated "as the administrative head of themunicipal government" in section 1 of articleXXV of the city charter. Section 2 of article XXV imposes upon the city manager such duties as appointing all appointive officers and employees except the city attorney, with advice and consent of the city commissioners. The city manager is vested with the

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responsibilityof seeing that the lawsand ordinancesare enforced and the duty of exercising control and supervision over all departments and officers. In addition, the charter gives the city manager the authority to remove,atwill. any persons appointedby him Section 3(d) of article 1269k. V.T.C.S., defines mayor as "the mayor of the city or the officer thereof charged with the duties customarily imposed on the mayor or executive head of the city." (Emphasisadded). The powers and duties of a mayordepend on the statutes and the city charter and on the ordinances enacted pursuant to them. 52 Tax. Jur.3dMunicipalities 9196 (1987). The mayor of a city has the power of supervisionover every department of the city government. city of San Antonio v. Robert Thompson 6 Co., Inc.. 30 S.W.2d 339 (Tax.Civ. APP. - San Antonio 1930). dismissed as moot, 44 S.W.2d 972 (Tax. Comm'nApp. 1932). It is our opinion that the charter of SanBenito charges the city managerwith "the duties cusromarily Imposedon themayor or executive head of the city" so as to bring the city manager within the definition of mayor as that term is defined in section 3(d) of article 1269k. We note that the city charter provides that appointmentsby the city manager are to be made with the "advice and con$ent of the city commission." SUMMARY

The citymanager of the city of San Benito is the officialwith the authority to appoint public housing authority commissioners governed by article 1269k. V.T.C.S. The city manager may remove public housing authority commissioners for 'reasonsstated in section 7 of article 1269k.

JACKHIGETOWER JIM MA,TT 0 X Attorney General of Texas
First AssistantAttorneyGeneral MARY KELLER ExecutiveAssistantAttorney-General

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JUDGE ZOLLIE STEAKLET SpecialAssistantAttorney General RICK GILPIN Chairman,Opinion Committee Prepared by Tom G.Davis AssistantAttorney General

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