HonorableChas. F. Hemphlll

CountyAuditor upton county Rankin, Texas

Dear Sir: OpinionNO. 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, requestingthe opinion of this departmenton 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 CommissionerJ.O. Currle,whereas on August 21, 1941, at a SpecialMeeting of Commissloners~ Court of Upton County, Texas, at which meeting those presentwere the County Judge, the four County Commissioners,the Sheriff, and the County Clerk, and at which meeting the followingmotion was passed, adopted and made a part of the Commissioners'Court Records of IJpton.County,

to wit:
"tMotlonby 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 emergencyarise all members of the Court be notified of such attention to call such special Session and advised of the purpose thereof.
"'All Commissionersvoting Aye.'

"In the Special Session above mentioned which was held on September 4, 1942 the Commls-HonorableChas. F. Hemphill,Page 2, No. O-4868

sloners'Court appointedMr. Maburn L. Harris to fulfill an unexpired term as Justice of the Peace at a salary of $100.00per month.

"As County Auditor, I have withheldpayment of Maburn L. Harris' salary due to the fact that the Special Session at which he was appolnted was not lawfullyand legallyheld unaer the Statutes and the SpecialAgreementhad by and between this ssme group of County Officials and so recorded in theirminutes.

"I am convinced that there was a lawful quorum of the Court presentand the only question as to the legalityof the appointmentis whether or notthe above mentionedagreement Is of binding consequencein this or any other instance, and whether I am within y just rights in withholdingthis 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 captionedreouest was merely for an opinion regardinga 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 agreementwhereby they would not hold a special session unless all Commissioners

had been duly notified of such special session. I think the Statutesare 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 requesta reason why one of the Commissioners

was not notifiedof 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 Officialsand all precinct OfficialsIn this County are being paid on an annual salary basis for the calendaryear of 1942, and the salary to be paid to the newly appointedJustice 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 constitutea quorum.

HonorableChas. E. Hemphill,Page 3, No. O-4868

for the transactionof any business, except that of levyinga county tax.”
Article 2342, Vernon’sAnnotated Civil Statutes reads as follows:
“The several commissioners, togetherwith the county judge, shall compose the 'Commlssioners Court’, and the county judge,when present, shall be the presidingofficer of said court.”

vides: Article 2348, Vernon’s Annotated Civil Statutes pro-

“The regular terms of the commissioners court shall be commencedand be held at,the court house on the second Monday of each mqnth throughoutthe year and may continue In sess$on one week; provided the court need not hold&re than one session:eachquarter 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’sAnnotated Civil Statutes provides in part:

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

. .. .. Justices of the Peace

. ... Such vacanciesshall 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 appointedby said court at Its specialmeeting. However,one of the co,mnissioners had no notice of the special meeting of the oommlssloners 1 court when the court appointed the justiceof the peace. Flotwithstanding the order of the commisslonera’ court requiring that all the members thereofbe notified of any or all special sessions of the court, It is our opinion that the action of the commissioners 1 court at a specialmeeting without notice to all the members thereof is void.

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

"In no Casey, in the absence of express statutoryprovision 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 participatedin the preceedlng or had notice. Where all the members of a board are present and participateIn a meeting without objection, it Is Immaterial that no notice of the meeting was given."

In the case of Webster vs. Texas & PacificMotor Transport Company,et al., decidedNovember 11, 1942 (SupremeCourt. of Texas, not yet reported), it Is stated:

"It Is a well establishedrule in this State, as well as in other States, that where the Legislaturehas committeda matter to a board, bureau, or commission,or other administrativeagency, 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 opportunityto attend. Consent or acquiescenceof, or agreement by ,theIndividualmembers 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 opportunityof 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 NationalBank of Marlin v. Dupuy (Tex. Civ. App.), 133 S.W. (2d) 238;.McAlisterv. City of Frost (Tex. Clv. App.), 131 S.W. (2d) 975."HonorableChas. E. Hemphill, Page 5, NO. o-G68

Therefore,in view of the foregoingauthorities,as above stated, It Is our opinion that the act of the commissioners1 court at a specialmeeting appointing the justice of the peace without notice to all the members of the commIssIonera court is void.

Article 6828, Vernon'sAnnotated Civil Statutes reads:

@'It shall be unlawful for any officer or court of this State, or of any municipaldivision 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 municipaldivision thereof,except to such person as has' been duly elected such of; fleer by the qualified voters of this State, and whose electionhas been ascertainedand certifiedor declared in the manner requiredby law, or who has been appointed such officerby the lawfulappointing power under the Constitution and laws of this State, or who has been adjudged entitled theretoby a State court of competent jurisdiction, and has qualified as such officer in accordancewith the law. Any person not so elected,appointedand qualified shall not be entitled to receivepay for servicesas such ~offlcer,

or to exercise the powers or jurisdiction of such officer.The officialacts of any person claiminga right to exercise such power or jurlsdiction contrary to the provisionsof this law shall be void."

It will be noted that under the provisionsof the foregoing statute that any person who has not been duly elected an officer by the qualifiedvoters of this State and whose electionhas been ascertainedand certifiedor declared In the manner requiredby law, or who has been appointed such officerby the lawful appointingpower Iunder the Constitution

and laws of the State, or who has been adjudged entitled theretoby a State court of competent j,urisdlction, and as qualifiedas such officer In accordancewith law is entitled to claim or he paid any salary, compensation, fees, perquisites, emolumentsor services,as an officer of the state or of any municipaldivision thereof. It will be further noted that any person not so elected,appointed, and q'halified'shall not be entitled to receivepay 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 appointmentof the justice of the peace Is void and he is not legally entitled to his salary as such officer.‘-.

.

HonorableChas. E. Hemphill, Page 6, No. 0-4868

are Trusting that the foregoingfully answers your inqulry;.we

Yours very truly

ATTORNEYGENERAL OF TEXAS

APPROVEDDEC. 9, 1942

GERALDC.MANN ATTORNEYGENERAL OF TEXAS By /II/ Ax-dell Wllllfuus Ardell Willlama Aaslstaat

APPROVED OPINION COMMITTEE By /ii/ BWB, CHAIRMAN

AW:ff:bk