OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

February 22,200l

The Honorable Jeff Wentworth Chair, Committee on Redistricting Texas State Senate P. 0. Box 12068 Austin, Texas 787 1l-2068 Opinion No. JC-0347 Re: Whether section 143.006(b) of the Texas Local Government Code authorizes a municipality’s chief executive officer to appoint a person to fill the position of a member of the Fire Fighters’ and Police Officers’ Civil Service Commission whose term has expired, and related questions (RQ-0294-JC) Dear Senator Wentworth: Your predecessor as chair ofthe Committee on Redistricting, Senator Gallegos, asked this office a series of questions concerning section 143.006 of the Local Government Code, especially with respect to the issue of appointments to the Fire Fighters’ and Police Officers’ Civil Service Commission. We conclude that the end of aterm isnot a“vacancy” for the purposes ofthat statute, and further that the power to nominate a member to such a cornmission is given to the chief executive of the municipality, not to its governing body. Questions concerning the criminal provisions ofthe statute would require considerations of facts and circumstances of a sort in which this office does not engage in the opinion process, and accordingly we cannot answer them. Section 143.006(b), which is central to your predecessor’s concern, reads as follows:

The commission consists of three members appointed by the municipality’s chief executive and confirmed by the governing body ofthe municipality. Members serve staggered three-year terms with the term of one member expiring each year. Ifa vacancy occurs or if an appointee fails to qualify within ten days after the date of appointment, the chief executive shall appoint aperson to serve for the remainder of the unexpired term in the same manner as the original appointment. TEX.Lot. GOV'T CODEANN. 0 143.006(b) (Vernon 1999) (emphasis added).The Honorable Jeff Wentworth - Page 2 (JC-0347)

Your predecessor asked first whether the expiration ofaterm is“considered avacancy inthe sense expressed by this section.“’ In our view it is not. A “vacancy” in this context clearly occurs during, and not atthe end of, aterm ofoffice. Otherwise the provision that “the chief executive shall appoint aperson to servefor the remainder ofthe unexpired term” would be meaningless. See TEX. GOV’T CODEANN. 6 311.021(2) (Vernon 1998) (presumption that entire statute is intended to be effective). Section 3of article 1269m, Revised Civil Statutes, the pre-codification source law, isto the same effect. “Any such vacancies in said Commission, caused bydeath, resignation, or otherwise, orby failure of any appointee to qualify within ten (10) days after appointment, shall be filled in the manner hereinafter specified . . . .” See Act ofMay 15, 1947, 50th Leg., R.S., ch. 325, 1947 Tex. Gen. Laws 550,55 1. This language makes it even more clear that the concern ofthe legislature was with filling vacancies within aterm, such asmight be caused by “death, resignation, or otherwise.“* The second question asked is whether, if “vacancy” includes the expiration of aterm, “the appointment of another member to the commission need[s] confirmation by the governing body.” Request Letter, supra note 1, at 1. As we noted above, “vacancy” is not to be so construed. Accordingly, we do not answer this question. Your predecessor next questions whether the governing body ofthe municipality, by itself, may appoint commission members. While the statute gives the power of confirmation to the governing body, with equal clarity it gives the power to nominate to the chief executive. Nothing in the statutory language suggests that the governing body may usurp what the request letter refers to as “the right orresponsibility to appoint commission members without consent or approval ofthe chief executive.” Id. A letter on this issue from the Mayor Pro Tempore ofthe City of South Houston draws our attention to acity ordinance, section 2-3(c)(2) of the Code of Ordinances, which provides that the mayor shall make vacancy appointments “not later than the second regular meeting of the city council after the vacancy occurs,” and that in the event “the mayor fails or refuses to do so, the city council shall make such appointment[s] ....“3However, amunicipal ordinance, even ifenacted by ahome rule city, is subordinate to a statute such as section 143.006. See TEX.CONST.art. 11, 8 5 (“no charter or any ordinance passed under said charter shall contain any provision inconsistent with

‘Letter from Honorable Mario Gallegos, Jr., State Senator, to Honorable John Comyn, Attorney General of Texas at 1(Oct. 9, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

‘Pursuant to the Code Construction Act, TEX.GOV’TCODEANN. 5311.023 (Vernon 1998), prior law may be considered as an aid to construction, so long as it is not “used to alter or disregard the express terms of a code provision.” Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999). In this instance there is no substantive difference between the prior law and the code.

3Letter from Eloise Smith, Mayor Pro Tempore, City of South Houston, to Office of the Texas Attorney General (Dec. 11,200O) (on file with Opinion Committee) [hereinafter Smith Letter].The Honorable Jeff Wentworth - Page 3 (JC-0347)

. . .the general laws enacted by the Legislature ofthis State”). The City of South Houston is, we are informed, “a Type A General Law City.” Smith Letter, supra note 3, at 1. As such its authority is yet more limited than that of a home rule city. “[Mlunicipalities have no inherent right of selfgovernment which is beyond the legislative control of the state. . . .” 52 TEX.JUR.3DMunicipaZ Corporations 5 136 (1999). Accordingly, the provisions ofthe city’s ordinance may not contravene the statutory scheme. The final two questions concern another provision ofthe statute, section 143.006(h), which reads: The chief executive of a municipality or a municipal official

commits an offense ifthe person knowingly or intentionally refuses to implement this chapter or attempts to obstruct the enforcement of this chapter. An offense under this subsection is a misdemeanor punishable by a fine of not less than $100 or more than $200. TEX.Lot. GOV’T CODEANN. 5 143.006(h) (Vernon 1999). We are asked, in relation to this statute, how many times amunicipality’s governing body may refuse to confirm the chief executive’s appointment, and “[wlhen are these refusals considered aviolation” of section 143.006(h). Request Letter, supra note 1,at 1. We note first that the statute is silent as to this question. It sets no particular limits in this regard. Further, aconfirmation, like an appointment, would appear to be discretionary rather than ministerial. See Tex. Att’y Gen. Op. No. JC-0140 (1999) at 3 (appointment of constable to fill vacancy is discretionary, and mandamus will not lie against commissioners court to compel appointment). “An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion.” Anderson v. City ofSeven Points, 806 S.W.2d 791,793 (Tex. 1991). If confirmation by the city council were merely ministerial, it would be supererogatory. Finally, asto what would constitute sufficient evidence that either the chief executive or any other municipal official was “knowingly orintentionally rems[ing] to implement ...or attempt[ing] to obstruct the enforcement of’ this statute, such adetermination would require fact-finding ofthe type in which we cannot engage in the opinion process.The Honorable Jeff Wentworth - Page 4 (JC-0347)

SUMMARY A “vacancy” on the Fire Fighters’ and Police Officers’ Civil Service Commission, for the purposes of section 143.006 of the Texas Local Government Code, does not occur upon the expiration of amember’s term. The appointment of another member by a municipality’s chief executive requires confirmation by its governing body. However, the governing body has no independent power to appoint such members.

Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General CLARK KENT ERVIN Deputy Attorney General - General Counsel SUSAN D. GUSKY Chair, Opinion Committee James E. Tourtelott Assistant Attorney General - Opinion Committee