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: 

By your inquiry inder date of January 17 1939, you 

seek the opinion of this Department upon the legality of the contemplated appointment by the Mayor and City Council of Cameron, 

to the office of City Attorney, of an attorney who does not~live 

within the corporate limits of said city. 

You append 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 4 ions 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, as r0ii0wst 

nIn case of a ,vaoancy in any other office in the 

city, the mayor or acting mayor shall 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 ex rel &gsbury v. Brinkerhoff, 17 S.V. 109. ConsequenCly, 

the Mayor and City Council of Cameron are properly proceeding, 

onder said statutory authority, to fill the vacancy Ln the ‘office 

of City Attorney by ap 

P 

ointment. 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 fol1owsi 
Ii&. W. A.(Blll) Morrison, page 2 (181) 

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 foregoing statutes to your inquiry is thus posed, 

Is a vacancy appointment of a city attorney &I 

Council, under 

tantamc iunt 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 who does not live within the corporate limits of 

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 

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 auat ainablr . 

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, a nullity 

and defeat the palpable purpoor or tha Leglalatura to rrquiro all 

mun1olpal offloara to be rraidrata of the munioipality in questionArtiolo 2927, Raviaad Civil statutea, 1925, ia a gomr11 atatuto 

govrrnln 

muniolpa f 

tha eligibility of olootivr Bteta, a@u&aty, prroiaot and 

offioara, and aa to the latter roquiroa rrtldraor la thr 

municipality involved, kctiolr 987 Rwiscld Givil Itatutaa 1925, 

provider that no parroa ahall be rlkgibla to tha offioa of Mayor 

or rldarman, unlaaa ha hra roaldrd ior a oertaia 

P 

orlod within tha 

oity Unita* 48 WI have herrlnabovr rhmm, Art10 o 1003, Rovlaod 

Civil Btatutea 1929, requirea that no parson ahell bo a polatrd 

to my offlor by tha oity oounoil unlraa ha raaidra with P a the oorti 

orate limit8 of the oity ia quuration. Aeiola 989 Wovlmd OLvil 

tatutor 1929, undar whioh thr appolattnrat in thla’oaar La aado, 

ia’ ailenk~ aa to raaidratial quallfioationa, but WI aubmit that in 

tho abaonor of an rxprraa provirion in auoh atatuta allowiag the 

appointment of non-reaidmtr, we are not 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 of the oity whloh they 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 common acception 

of the term, oomposrd of the mayor .and aldemOn. Vacancy appointments are made by the “city counoll~~ in this aonso of the term, and 

are not made by 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. 

4 oonditional 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 

may be 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 11 2: 

v. Boyd, et al 66 S.W. 874. Mechem,’ 

and cases cited. 

In the case of Brumby v. Boyd supra, the municipal charter under consideration provides as foliows* 

“In case of a vacancy 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 a vote of a majority 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 a vaoanoy in an elective offior, and that such 

authority ia Vested rolely in the olty oounoll. Pho 

selection of the person to fill such vaoanoy must be 

by the council, which Is composed of the mayor and 

board of alarrum. Neither can act in the matter independent of the other, and no legal appointment temporary or otherwise, can be made unless ooncurra (I in 

by both the mayor and a majority of the board of aldermen. Tho nomination by the mayor Is only the initial 
. 

Hon. W. 4. (Bill) Morrison, pa%! 4 (181) 

step W-making the appolntmtint, ‘and the appointment .becomos. complete only when Cohcurred in by 

a majority of the aldormon. 

Par. 114, . .'I 

M&hem, Pub .orr . 

Under this authority, wo believe the word “appointtient”, 

as. employed in Article 989, Revised Civil Statutes, must be construed to mean nselectlon” or %omlnatlon” by the 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 who lives beyond 

the confines of the City of &meron can legally be appointed to 

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