### THE ATTORNEY GENERAL OF TEXAS Gerald C. AUWI-IN 11.m February 1, 1939

,

Hon. Y. A. (Bill) Morrison Criminal Dlstrlct Attorney Milam county Oameron,Texas - opinion Ho. 181 Bec Legality of vacancy appolntment of non-resident of Cameron to the office of City Attorney. Dear Mr~.Morrison:

Byyour inquiry inder date of January 17 1939, you seek the opinion of this Department upon the legality of the contemplated appointment bythe Mayor and City Council of Cameron, to the office of City Attorney, of an attorney whodoes not~live within the corporate limits of said city.

Youappend 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 pertaining thereto.

Article 977, governing officials of them elective offices. Revised Civil Statutes guch municipal protildes for the

corpora 4ions and constitutes

Article 989 filling of vacancies Revised Civil Statutes, provides for the 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, asr0ii0wst

nIn case of a,vaoancy in any other office in the city, the mayor or acting mayorshall 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 exrel &gsbury v. Brinkerhoff, 17S.V. 109. ConsequenCly, the Mayor and City Council of Cameron are properly proceeding, onder said statutory authority, to fill the vacancy Lnthe ‘office of City Attorney by apPointment. The only difficulty confronting them is the residentda~ requirements or qualifications for the office of City Attorney, embodied in Article 1003, Revised Civil Statutes, 1925, as fol1owsiIi&. W.A.(Blll) Morrison, page 2 (181)
Wo person other than en elector resident of the

“,;z,;t;$l be appoint adto any office by the city

The question presented by the application of the foregoing statutes to your inquiry is thus posed,

Is avacancy appointment of a city attorney &I Council, under tantamciunt to or equivalent to the appointment of such requirements of the iatter Article applicable? If an affirmative answer to the above question is warranted, the residential requirements of kticle 1003, Revised Civil Statutes, will prevent the appointment to the offior of oity attorney,of any lawyer whodoes not live within the corporatelimits of the City of Cameron. If, on the oontrary there ia avalid di8- tinctlon to be&awn between appointment to thla offlor &ythe rp~pp~, u on confirmation by City Council, within the 

### 919, on the language of 4rtiole

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 auatainablr

.

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, anullity and defeat the palpable purpoor or tha Leglalatura torrquiro all mun1olpal offloara tobe rraidrata of the munioipality in questionArtiolo 2927, Raviaad Civil statutea, 

### 1925, iaagomr11 atatuto govrrnln muniolpa f tha eligibility of olootivr Bteta, a@u&aty,prroiaot and

offioara, and aa to the latter roquiroa rrtldraorlathr municipality 

### involved, kctiolr 

### 987 RwiscldGivil Itatutaa 1925, providerthat no parroaahall be rlkgibla to tha offioa of Mayor or rldarman, unlaaa hahra roaldrdioraoertaia Porlodwithin tha 

### oity Unita* 48WIhave 

### herrlnabovr rhmm, Art10o1003,Rovlaod Civil Btatutea 

### 1929, requirea that no parson ahell bo apolatrd to my offlor by tha oity oounoil unlraa ha raaidra with a P the oortiorate limit8 

### ofthe oity ia quuration. Aeiola 989 Wovlmd OLvil 

### tatutor 1929, undar 

### whiohthr appolattnrat in thla’oaar Laaado, ia’ailenk~ aa to raaidratial quallfioationa, butWI aubmitthat in tho abaonor of an rxprraa provirion inauoh atatuta allowiag the appointment of non-reaidmtr, we arenot juatifled in aaoribing to thr Leglalaturr an Mont to orratr in thia one inatanor an rxoeptioa to ita unlvrraal polloy of requiring 

### muniolpal ofrioara to be 

### resldonta ofthe oity whlohthey are **ol8otod**

### to aorva~Hon. W.8. (Bill) Morrison,page 3 (181)

Moreover, it is our conclusion that the vacancy appointments by the myor with confirmation by the city council, in accordance 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 Statutes, because “oity council* is by statutory drfialtion in Article 977 Revised Civil 8tatutrs, 1925,and under ~the commonacception ofthe term, oomposrd of the mayor .and

### aldemOn. Vacancy appointments are madeby the “city counoll~~ in this aonso of the term, and are not madeby 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 its oonf&aatlon by tho city oouncll. 4oonditional upon

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 maybe 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 Public Offices, Section 112:v. Boyd, et al 66S.W. 874. Mechem,’ and cases cited. In the case of Brumbyv. Boyd supra, the municipal charter under consideration provides as foliows*

“In case of avacancy in any elect ire 

### 0fri00, from whatever reason, the council, upon nomination by the mayor, shall fill the vacancy by the solectlon of soae porron by avote of amajority of the aldermen elect ad ana qualiz 

### lea.11 With referoncr to whether this charter provision conferred the power of appointment upon the mayor or upon the city council, 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 avaoanoy in an elective offior, and that such authority ia Vestedrolelyinthe olty oounoll. Pho selection of the person to fill such vaoanoy must be by the council, which Is composed of the mayorand 

### board ofalarrum. Neither can act in the matter independent of the other, and no legal appointment temporary or otherwise, can be madeunless ooncurra (Iin byboth the mayor and amajority of the board of aldermen. Thonomination by the mayor Is only the initial. Hon. W.4. (Bill) Morrison, pa%!4 (181)

step W-making the appolntmtint, ‘andthe appointment.becomos. complete only when Cohcurred in by amajority of the aldormon. Par. 114,

. .'I M&hem, Pub.orr
.
Under this authority, wobelieve the word “appointtient”, as.employed in Article 989, Revised Civil Statutes, must be construed to mean nselectlon” or %omlnatlon” bythe 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 wholives beyond the confines of the City of &meron can legally be appointed to this office. Yours very truly ATTORNEY

GBNERAL

OFTEXAS By/s/ Pat M.Neff, Jr. Assistant PM?:N:wb APPROVEiD /s/ Gerald C. Mann ATTORNEY

GENERRQL

OFTEXAS