Honorable Chas. F. Hemphlll 

County Auditor 

upton county 

Rankin, Texas 

Dear Sir: Opinion NO. O-4868 

Re: Was the appointment 

of the Justlce of the 

Peace legal and is he 

entitled to his salary 

under the facts stated? 

Your letter of September 29, 1942, requesting the opinion 

of this department on the above stated question reads in part as 

follows: 

"On September 4th 1942 the Commissioners 

Court of this County met in Special Session 

without having notified Commissioner J.O. 

Currle, whereas on August 21, 1941, at a 

Special Meeting of Commissloners~ Court of 

Upton County, Texas, at which meeting those 

present were the County Judge, the four 

County Commissioners, the Sheriff, and the 

County Clerk, and at which meeting the following motion was passed, adopted and made 

a part of the Commissioners' Court Records 

of IJpton.County, to wit: 

"tMotlon by Commissioner Wheeler, seconded by Commissioner Yates that no more Special 

Sessions of the Commissioners' Court be called 

unless In case of an emergency. That should an 

emergency arise all members of the Court be notified of such attention to call such special 

Session and advised of the purpose thereof. 

"'All Commissioners voting Aye.' 

"In the Special Session above mentioned 

which was held on September 4, 1942 the Commls- 
Honorable Chas. F. Hemphill, Page 2, No. O-4868 

sloners' Court appointed Mr. Maburn L. Harris 

to fulfill an unexpired term as Justice of the 

Peace at a salary of $100.00 per month. 

"As County Auditor, I have withheld payment of Maburn L. Harris' salary due to the fact 

that the Special Session at which he was appolnted was not lawfully and legally held unaer 

the Statutes and the Special Agreement had by 

and between this ssme group of County Officials 

and so recorded in their minutes. 

"I am convinced that there was a lawful 

quorum of the Court present and the only question as to the legality of the appointment is 

whether or notthe above mentioned agreement Is 

of binding consequence in this or any other instance, and whether I am within y just rights 

in withholding this man's salary. 

In your letter of November 16, 1942, supplementing 

the above mentioned letter, you state In part: 

"I wish-,to advise that the captioned reouest was merely for an opinion regarding a 

lawful quorum for the Commissioners' Court of 

this County due to the fact that this particular 

Court had at a prior meeting recorded in the 

Commissioners' Court Minutes an agreement whereby 

they would not hold a special session unless all 

Commissioners had been duly notified of such special 

session. I think the Statutes are clear concerning 

a legal quorum, but the question is simply whether 

or not such minute of the Court Is of any value on 

the records. You request a reason why one of the 

Commissioners was not notified of the special session, I am forced to answer that I do not know. 

There Is possibly no reason at all. 

"I wish to advise further that all County 

Officials and all precinct Officials In this 

County are being paid on an annual salary basis 

for the calendar year of 1942, and the salary to 

be paid to the newly appointed Justice of the 

Peace Is the same as that paid to the deceased 

officer." 

Article 2343, Vernon's Annotated Civil Statutes provides: 

"Any three members of the said court, lnoludlng the county judge, shall constitute a quorum 
. 

Honorable Chas. E. Hemphill, Page 3, No. O-4868 

for the transaction of any business, except 

that of levying a county tax.” 

Article 2342, Vernon’s Annotated Civil Statutes reads as 

follows: 

“The several commissioners, together with 

the county judge, shall compose the 'Commlssioners Court’ , and the county judge, when present, shall be the presiding officer of said 

court.” 

vides : 

Article 2348, Vernon’s Annotated Civil Statutes pro- 

“The regular terms of the commissioners 

court shall be commenced and be held at, the 

court house on the second Monday of each mqnth 

throughout the year and may continue In sess$on 

one week; provided the court need not hold&re 

than one session :each quarter If the business of 

the court does not demand a session. Any session 

may adjourn at any time the business of the ‘court 

is disposed of.. Special terms may be called by the 

county judge or three of the commissioners, and 

may continue in session until the business Is 

completed.” 

.., Article 2355, Vernon’s Annotated Civil Statutes provides in part: 

“The Court shall have power to fill vacancies in the office of: . . . . . Justices of the 

Peace . . . . Such vacancies shall be filled by a 

majority vote of the members of said Court, present and voting, and the person chosen shall hold 

office until the next general election.” 

Under the facts stated, all members of the commlsslonersl 

court were present except one county commissioner when the justice 

of the peace wae appointed by said court at Its special meeting. 

However, one of the co,mnissioners had no notice of the special 

meeting of the oommlssloners 1 court when the court appointed the 

justice of the peace. Flotwithstanding the order of the commisslonera’ court requiring that all the members thereof be notified of 

any or all special sessions of the court, It is our opinion that 

the action of the commissioners 1 court at a special meeting without notice to all the members thereof is void. 

It is stated in Corpus Jurls., Volume 46, page 1035: 
Honorable Chas. E. Hemphill, Page 4, No. O-4868 

"In no Casey, in the absence of express 

statutory provision to the contrary, can the 

action of a majority be regarded as valid, unless all are present or have been notified, 

although It has been held that, until the contrary has been shown, it will be presumed that 

all were present and participated in the preceedlng or had notice. Where all the members 

of a board are present and participate In a 

meeting without objection, it Is Immaterial 

that no notice of the meeting was given." 

In the case of Webster vs. Texas & Pacific Motor Transport Company, et al., decided November 11, 1942 (Supreme Court. of 

Texas, not yet reported), it Is stated: 

"It Is a well established rule in this 

State, as well as in other States, that where 

the Legislature has committed a matter to a 

board, bureau, or commission, or other administrative agency, such board, bureau, or commission must act thereon a8 a body at a stat d 

meeting, 'or -one properly called, and of whi cz 

all the members of such board have notice, Or 

of which they are given an opportunity to attend. Consent or acquiescence of, or agreement 

by ,the Individual members actlng sepamtely., 

and not as a body, or by a number of the members less than the whole acting collectively 

at an unscheduled meeting without notice or 

opportunity of the other members to attend, 

is not sufficient. 34 Tex. Jur.457; 51 C.J. 

62; State v. Union Light, Heat & Power Co.(N.D.), 

1821v.w. 539. McNolty v. Board of School Dlrectors (Wi.s.j, 78 N.W. 439; People v. Whltrldge, 

129 N.Y.S. 295; city of Floydada v. Gillam 

(Tex. clv. App.), 11 S.W. (2d) 761; King v. 

Guerra (Tex. Civ~. App.)~, 1 S.W. (2d) 373; Schwanbeck v. People ex rel. Mith (Colo.) 24 P 575; 

School District Ifo. 39,~Pattowetoml.e County v. 

v. Shelton (Okla.), 109 P. 67; Murphy v. City of 

Albina (Ore.), 29 P. 353; Mason v. Directors of 

Poor for Erie County (Pa.), 126 Pa. 445; Thompson 

v. West (Neb.), 82 N.W. 13; First National Bank 

of Marlin v. Dupuy (Tex. Civ. App.), 133 S.W. (2d) 

238;.McAlisterv. City of Frost (Tex. Clv. App.), 

131 S.W. (2d) 975." 
Honorable Chas. E. Hemphill, Page 5, NO. o-G68 

Therefore, in view of the foregoing authorities, as 

above stated, It Is our opinion that the act of the commissioners1 

court at a special meeting appointing the justice of the peace without notice to all the members of the commIssIonera court is void. 

Article 6828, Vernon's Annotated Civil Statutes reads: 

@'It shall be unlawful for any officer or court 

of this State, or of any municipal division thereof, :- 

to allow, audit, pay or order to be paid, the claim 

of any person for salary, compensation, fees, per- ; 

quisites, emoluments or services, as an officer of 

the State or of any municipal division thereof, except to such person as has' been duly elected such of; 

fleer by the qualified voters of this State, and 

whose election has been ascertained and certified or 

declared in the manner required by law, or who has 

been appointed such officer by the lawful appointing 

power under the Constitution and laws of this State, 

or who has been adjudged entitled thereto by a State 

court of competent jurisdiction, and has qualified 

as such officer in accordance with the law. Any person not so elected, appointed and qualified shall 

not be entitled to receive pay for services as such 

~offlcer, or to exercise the powers or jurisdiction 

of such officer. The official acts of any person 

claiming a right to exercise such power or jurlsdiction contrary to the provisions of this law 

shall be void." 

It will be noted that under the provisions of the foregoing statute that any person who has not been duly elected an officer 

by the qualified voters of this State and whose election has been ascertained and certified or declared In the manner required by law, 

or who has been appointed such officer by the lawful appointing power 

Iunder the Constitution and laws of the State, or who has been adjudged 

entitled thereto by a State court of competent j,urisdlction, and as 

qualified as such officer In accordance with law is entitled to claim 

or he paid any salary, compensation, fees, perquisites, emoluments or 

services, as an officer of the state or of any municipal division thereof. It will be further noted that any person not so elected, appointed, 

and q'halified'shall not be entitled to receive pay for services as such 

officer, or to exercise the powers or jurisdiction of such officer. Therefore, as above stated, It is our opinion that the appointment of the justice of the peace Is void and he is not legally entitled to his salary 

as such officer. 
‘-. . 

Honorable Chas. E. Hemphill, Page 6, No. 0-4868 

are 

Trusting that the foregoing fully answers your inqulry;.we 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

APPROVED DEC. 9, 1942 

GERALDC.MANN 

ATTORNEY GENERAL OF TEXAS 

By /II/ Ax-dell Wllllfuus 

Ardell Willlama 

Aaslstaat 

APPROVED 

OPINION COMMITTEE 

By /ii/ BWB, CHAIRMAN 

AW:ff :bk